Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE SHELTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 871201
 
                                          :
 
            METRO TRANSIT AUTHORITY,      :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision filed 
 
            January 26, 1990, awarding claimant healing period benefits, 
 
            industrial disability benefits, and payment for certain 
 
            medical care.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and of joint exhibits 1 through 17.  
 
            Both parties filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:
 
            
 
                 1.  Whether claimant's alleged disability is causally 
 
            connected to his November 12, 1987 injury;
 
            
 
                 2.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to benefits under 
 
            section 85.27.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed January 26, 1990 
 
            adequately and accurately reflects the pertinent evidence 
 
            and will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence with the following 
 
            additional citation:
 
            
 
                 Expert testimony that condition could be causally 
 
            related to claimant's employment together with non-expert 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            testimony tending to showing causation may be sufficient to 
 
            sustain an award, but does not compel an award.  Anderson v. 
 
            Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974).
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision relative to the issues of 
 
            claimant's entitlement to healing period benefits and 
 
            relative to the issue of claimant's entitlement to payment 
 
            of medical costs pursuant to section 85.27 are adopted.  The 
 
            analysis of evidence in conjunction with the law in the 
 
            arbitration decision relative to the issue of causation 
 
            between claimant's work injury and alleged permanent 
 
            disability and relative to claimant's entitlement to 
 
            industrial disability is modified in the following regards:
 
            
 
                 Defendants argue that there is insufficient evidence of 
 
            causal relationship between claimant's underlying disc 
 
            disease and his activities as a bus driver to support the 
 
            deputy's finding of a causal relationship between that 
 
            activity and any permanent impairment to claimant.  
 
            Defendants rightly state that Dr. Boulden assigned a five 
 
            percent permanent partial impairment rating as relating to 
 
            the underlying disc disease.  Defendants overstate their 
 
            case, however.
 
            
 
                 As the deputy set forth in the Review of the Evidence, 
 
            Dr. Boulden indicated that claimant's underlying disc 
 
            disease "may or may not" be related to his activities of 
 
            bouncing and riding in a bus for 15 years.  The doctor 
 
            indicated that further testing would be necessary for a 
 
            definitive [medical] answer as to that causation.  
 
            Sufficient lay evidence exists to establish the requisite 
 
            causation, however, when that lay evidence is coupled with 
 
            Dr. Boulden's statement of a possibility of causation.  
 
            Claimant apparently had no symptoms leading to a finding of 
 
            degenerative disc disease until he began experiencing back 
 
            problems in late 1986 and sought chiropractic care for 
 
            those.  That driving a bus involves jarring and bouncing 
 
            motions is not disputed.  Those facts support the deputy's 
 
            finding that the greater weight of evidence indicates 
 
            claimant had a preexisting degenerative disease, which 
 
            preexisting disease was materially worsened, aggravated and 
 
            lighted up by claimant's years of bus driving.
 
            
 
                 We next consider the question of the nature and extent 
 
            of claimant's permanent disability, if any.
 
            
 
                 The deputy found that claimant had a 15 percent 
 
            industrial disability.  That finding is not unreasonable 
 
            given the overall circumstances presented.  Claimant has a 
 
            mild permanent partial impairment of his lower back.  
 
            Claimant has restrictions relative to lifting over 35-40 
 
            pounds, and relative to bending, stooping, and sitting or 
 
            standing for prolonged periods without breaks.  Those 
 
            restrictions preclude claimant from many heavy labor 
 
            positions for which he would otherwise qualify.  While 
 
            claimant is a high school graduate and is bright enough to 
 
            have developed some individual expertise as a computer 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            operator and programmer, his only formal training is a truck 
 
            driving course.  His experience has all been in the driving 
 
            industry.  Without appropriate work hardening, it is 
 
            doubtful that claimant will be able to work in that industry 
 
            without aggravating his condition.  Indeed, claimant was 
 
            working as a trucker at time of hearing and had worked as a 
 
            short-haul trucker and as a limousine driver subsequent to 
 
            his termination with this employer.  Claimant testified and 
 
            it is accepted that claimant experienced pain and 
 
            difficulties in those positions when he was required to 
 
            drive for more prolonged periods or when he was required to 
 
            lift without appropriate assistance.
 
            
 
                 It cannot be said that claimant is motivated, however.  
 
            The record is replete with instances where claimant did not 
 
            cooperate with his doctors nor with his employer relative to 
 
            realistic attempts to improve claimant's physiological 
 
            functioning and return him to the competitive labor market.  
 
            Claimant had significant problems in his dealings with Drs. 
 
            Boulden, Blessman, and Boarini.  Claimant also had 
 
            significant problems in his dealings with his vocational 
 
            rehabilitation counselor, Ms. O'Brien.  The record, taken as 
 
            a whole, does not establish that any of these individuals 
 
            dealt with claimant in any but the most professional manner 
 
            and in any manner but a manner showing a sincere concern for 
 
            claimant's well-being and a desire to assist claimant in 
 
            realistically assessing his physical and economic condition 
 
            and in taking responsibility for such condition.  That 
 
            claimant did not do so cannot be impugned to any of those 
 
            individuals.  [We note in passing that defendants did not 
 
            refer to claimant to Mayo Clinic as Dr. Haag had suggested.  
 
            That decision was reasonable under the circumstances.  
 
            Claimant had at that time been examined by three experts:  
 
            Dr. Boulden, an orthopaedic surgeon; Dr. Boarini, a 
 
            neurological surgeon; and, Dr. Blessman, a pain specialist.  
 
            All three have found that claimant's subjective complaints 
 
            were significantly greater than the objective findings 
 
            warranted.  Nothing in the record suggests that any of the 
 
            three were biased or operating out of personal prejudice 
 
            toward claimant in making those findings.  Nothing in the 
 
            record overall suggests that further evaluation at Mayo was 
 
            warranted or that claimant would have received a more 
 
            non-biased result should claimant have undergone evaluation 
 
            at Mayo Clinic.
 
            
 
                 Likewise, the deputy found that defendants terminated 
 
            claimant on account of his work injury and then refused to 
 
            rehire claimant on account of his work injury.  The record 
 
            overall does not support that finding.  Claimant's personnel 
 
            file is replete with instances where claimant appeared to 
 
            have placed his own immediate interests above the interests 
 
            of his employer.  While such instances may well not 
 
            constitute misconduct that would disqualify the individual 
 
            from receiving unemployment compensation, it was not 
 
            unreasonable for this employer to interpret claimant's 
 
            failure to more fully cooperate with the employer's attempts 
 
            to return claimant to work and with the recommendations of 
 
            the authorized physicians as part of a pattern of 
 
            inappropriate conduct such that the employer chose to 
 
            release claimant from employment, even should claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            qualify for unemployment compensation benefits.  It is noted 
 
            that neither claimant nor his union further appealed his 
 
            termination subsequent to the final employer determination 
 
            from Mr. Spade.  Such suggests a private determination that 
 
            the employer had sufficient basis for termination.  
 
            Likewise, claimant sought re-employment with the employer 
 
            subsequent to his termination.  The employer advised 
 
            claimant that claimant should demonstrate his ability to 
 
            work in the field by working in a light capacity for at 
 
            least one year before the employer would comfortably 
 
            consider re-employing claimant.  Such was not an 
 
            unreasonable decision on the employer's part, given 
 
            claimant's past work record and claimant's desire at the 
 
            time of his termination not to return to work with the 
 
            employer on account of his back condition.
 
            
 
                 Given the above, a McSpadden analysis which enhances 
 
            claimant's industrial disability on account of employer 
 
            termination or refusal of return to work subsequent to a 
 
            work injury is not warranted.  The employer's termination of 
 
            claimant and its refusal to rehire had their basis in 
 
            claimant's overall work history with the employer and not in 
 
            the work injury and its sequelae per se.  Similarly, 
 
            claimant's industrial disability is not enhanced on account 
 
            of claimant's motivation.  Indeed, claimant's motivation is 
 
            a factor that substantially reduces his industrial 
 
            disability.  Had claimant demonstrated substantial 
 
            limitations on his ability to compete in the job market 
 
            after participating fully in recommended work hardening and 
 
            vocational and physical rehabilitation, claimant's loss of 
 
            earnings might well be substantially greater than the 15 
 
            percent the deputy proposed.  Claimant has not demonstrated 
 
            such.
 
            
 
                 On the other hand, given claimant's limited education, 
 
            limited experience, mild physical impairment of the low 
 
            back, and inability to engage in heavy labor on account of 
 
            his restrictions, a finding of a loss of earning capacity of 
 
            15 percent is appropriate.  Claimant is, therefore, found to 
 
            have sustained a 15 percent permanent partial industrial 
 
            disability on account of his injury of November 12, 1987.
 
            
 
                                 findings of fact
 
            
 
                 WHEREFORE, it is found:
 
            
 
                 Claimant incurred a work-related cumulative injury to 
 
            his low back on November 12, 1987.
 
            
 
                 Claimant's work-related low back injury is the result 
 
            of his November 12, 1987 injury.
 
            
 
                 Claimant has a five percent permanent impairment to his 
 
            back as a result of his work-related cumulative injury on 
 
            November 12, 1987.
 
            
 
                 Claimant reached maximum healing on April 11, 1988.
 
            
 
                 Claimant incurred a healing period beginning November 
 
            12, 1987 to and including April 11, 1988, which involved 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            21.714 weeks.
 
            
 
                 The employer terminated claimant on May 18, 1988, after 
 
            claimant brought in statements of Drs. Haag and Wignall that 
 
            claimant should not return to work, which statements 
 
            contradicted the statements of Drs. Boarini and Blessman 
 
            that claimant could return to work.
 
            
 
                 Defendants refused to rehire claimant in May 1989 even 
 
            though defendants were advertising for bus drivers.
 
            
 
                 Defendants' refusal to rehire claimant in May 1989 was 
 
            not unreasonable nor directly related to claimant's work 
 
            injury, given the overall pattern of claimant's relationship 
 
            with the employer prior to his May 1988 termination and 
 
            given claimant's non-return to work in May 1988 on account 
 
            of claimant's back condition.
 
            
 
                 Claimant was employed as an over-the-road trucker at 
 
            time of hearing and was earning as much if not more money 
 
            from that employment than he earned at time of his November 
 
            12, 1987 injury.
 
            
 
                 Claimant has restrictions on sitting, standing, 
 
            bending, stooping and lifting which restrictions preclude 
 
            him from heavy labor such as he might have performed prior 
 
            to November 12, 1987.
 
            
 
                 Claimant's training and experience are in the driving 
 
            industry.
 
            
 
                 Claimant was not cooperative with efforts to physically 
 
            and economically rehabilitate him.
 
            
 
                 Claimant lacks motivation.  Claimant's lack of 
 
            motivation substantially reduces claimant's actual loss of 
 
            earning capacity.
 
            
 
                                conclusions of law
 
            
 
                 THEREFORE, it is concluded:
 
            
 
                 Claimant's cumulative low back injury on November 12, 
 
            1987 arose out of and in the course of claimant's 
 
            employment.
 
            
 
                 Claimant's low back injury and five percent permanent 
 
            partial impairment to his back is causally connected to his 
 
            cumulative work injury on November 12, 1987.
 
            
 
                 Claimant reached maximum recovery on April 11, 1988.
 
            
 
                 Claimant incurred a healing period beginning November 
 
            12, 1987 to and including April 11, 1988, which involved 
 
            21.714 weeks.
 
            
 
                 Claimant has a 15 percent industrial disability.
 
            
 
                 Defendants are responsible for claimant's medical bills 
 
            in the amount of $521.19 with Hilltop Clinic (Dr. Haag), and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a Mercy Hospital bill in the amount of $145.00.
 
            
 
                 Defendants are not responsible for claimant's 
 
            chiropractor bill in the amount of $225.00 with Dr. Wignall.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant healing period 
 
            benefits beginning November 12, 1987 through April 11, 1988, 
 
            encompassing twenty-one point seven one four (21.714) weeks 
 
            at the rate of two hundred sixty-four and 29/100 dollars 
 
            ($264.29) per week.
 
            
 
                 Defendants shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred sixty-four and 29/100 dollars ($264.29) per 
 
            week commencing April 12, 1988.
 
            
 
                 Defendants shall pay the accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 Defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 Defendants shall pay the medical bill of Hilltop Clinic 
 
            (Dr. Haag) in the amount of five hundred twenty-one and 
 
            19/100 dollars ($521.19), and the Mercy Hospital bill in the 
 
            amount of one hundred forty-five dollars ($145.00).  
 
            Defendants are not responsible for Dr. Wignall's bill in the 
 
            amount of two hundred twenty-five dollars ($225.00).
 
            
 
                 Defendants pay the costs of the appeal, including the 
 
            preparation of the hearing transcript pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants file claim activity reports pursuant to rule 
 
            343 IAC 3.1(a).
 
            Signed and filed this ______ day of ____________, 1991.
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 2206
 
                                               Filed October 31, 1991
 
                                               HELENJEAN WALLESER
 
                                               BJO
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WAYNE SHELTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 871201
 
                                          :
 
            METRO TRANSIT AUTHORITY,      :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 2206
 
            
 
                 Deputy affirmed.  Claimant, with restrictions on 
 
            prolonged sitting, standing, bending and stooping; on 
 
            lifting over 35-45 pounds; and, with five percent permanent 
 
            partial impairment of the body as a whole on account of 
 
            functional low back pain related to work aggravation of 
 
            degenerative disc disease, awarded 15 percent industrial 
 
            disability, even though he was earning more at time of 
 
            hearing than when injured.  Restrictions precluded work in 
 
            heavy labor jobs for which he was otherwise suited.  
 
            Claimant lacked motivation and had not cooperated with 
 
            physicians', vocational consultant's or employer's efforts 
 
            to rehabilitate him and return him to work.  The employer 
 
            terminated claimant subsequent to the work injury when 
 
            claimant sought other medical advice rather than return to 
 
            work when released by two of three physicians.  HELD:  While 
 
            claimant's actions did not meet the definition of 
 
            "misconduct" under unemployment compensation law such as to 
 
            disqualify him from receiving unemployment compensation 
 
            benefits, conduct when viewed as part of a pattern of 
 
            actions of claimant relative to his employer gave the 
 
            employer sufficient reason to terminate claimant such that 
 
            claimant's termination could not fairly be said to be on 
 
            account of claimant's work injury under McSpadden.
 
            
 
                 Likewise, the employer acted reasonably in not 
 
            immediately rehiring claimant when he later reapplied for 
 
            work, given claimant's earlier refusal to return to work.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE SHELTON,
 
         
 
              Claimant,                              File No. 871201
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         METRO TRANSIT AUTHORITY,                    D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JAN 26 1990
 
         HARTFORD INSURANCE COMPANY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Wayne L. Shelton, against Metro Transit Authority, employer, and 
 
         Hartford Insurance Company, insurance carrier, to recover 
 
         benefits as a result of an alleged injury sustained on November 
 
         12, 1987. This matter came on for hearing before the deputy 
 
         industrial commissioner in Des Moines, Iowa, on November 14, 
 
         1989.  The record consists of the testimony of the claimant, 
 
         claimant's wife, Julie Shelton, Dennis W. Peterson, and Cecilia 
 
         L. O'Brien; and joint exhibits 1 through 17.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's alleged disability is causally 
 
         connected to his November 12, 1987 injury;
 
         
 
              2.  The nature and extent of claimant's disability; and
 
              
 
              3.  Whether claimant is entitled to benefits under Iowa Code 
 
         section 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified personally and through his depositions 
 
         taken on January 27, 1989 and October 28, 1989.  Claimant said he 
 
         is a high school graduate.  Claimant stated he went to Ryder 
 
         Truck Driving School in 1972 and within the last year took a 
 
         couple of computer courses.  Claimant testified he began working 
 
         for defendant employer in November 1973 and last worked for them 
 
         on November 11, 1987.  He stated he was eleventh in seniority 
 
         with defendant employer.  Prior to November 1973, claimant said 
 
         he worked full-time and part-time for an amusement park.  He 
 
         explained that full-time involved every day for six months of the 
 
         year.  Claimant also drove a truck for a sanitary company and was 
 
         a messenger for Bankers Trust during part of that former period.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant acknowledged that David J. Boarini, M.D., released 
 
         him to go back to work in May of 1988.  He explained that since 
 
         Dr. Boarini looked at him about three minutes and did very 
 
         little, he wanted to talk to Stanley W. Haag, M.D., his original 
 
         doctor again before he made a decision.  Claimant acknowledged 
 
         that defendant employer offered to rehire him after Dr. Boarini 
 
         and James Blessman, M.D., released him to return to work.  
 
         Claimant said that since all the doctors he had seen had not 
 
         released him to return to work, he did not go back.
 
         
 
              Claimant explained a grievance he filed when defendant 
 
         employer terminated him for not returning to work.  Claimant 
 
         acknowledged the dismissal was upheld on appeal.  Claimant said 
 
         he had union representation at that time.
 
         
 
              The claimant said he has not hurt his back since his November 
 
         1987 injury, but he did have some low back problems during the 
 
         year before.  Claimant testified as to various jobs he has had 
 
         since his November 1987 injury.  Claimant stated his first job 
 
         since that time was as a limousine driver beginning in December 
 
         1988 and lasting two and one-half months.  Claimant said he then 
 
         worked as a truck driver for Hawkeye Classic Tours approximately a 
 
         month and a half.  He indicated he had to take a DOT physical for 
 
         that job and passed it. Claimant left that job for another truck 
 
         driving job with better pay with Ingle Trucking.  Claimant 
 
         testified that this job required loading and unloading and hauling 
 
         newspapers to certain destinations, usually outside Des Moines.  
 
         He said the job required lifting approximately 100 bundles of 
 
         newspapers weighing 30 to 50 pounds six nights a week.  Claimant 
 
         said he had help at times to load and unload but that this job 
 
         aggravated his back condition.  He emphasized it did not make his 
 
         condition worse.  This job ended in August 1989.  Claimant 
 
         testified he then worked for a short time as a delivery truck 
 
         driver for Hiland Potato Chips but because of the long hours and 
 
         low pay, he quit.  Claimant testified he then began his current 
 
         job with Hyway Carriers as a driver on September 14, 1989 and 
 
         currently holds this same job.  Claimant indicated he has his own 
 
         company truck to drive.  Claimant revealed that he passed the DOT 
 
         physical for this job.  He described the job as involving long and 
 
         short driving hauls using an 18-wheel semi truck.  Claimant 
 
         described himself as a long distance over-the-road truck driver. 
 
         Claimant stated he has had only one load that he has had to unload 
 
         with help.  He emphasized all the rest of his loads have been 
 
         loaded and unloaded for him.
 
         
 
              Claimant acknowledged that he is able to work as a truck 
 
         driver and do everything else that would be required of him. 
 
         Claimant estimated his yearly income to be $25,000 from this 
 
         recently acquired trucking job.  Claimant related no present 
 
         medical restrictions other than eye glasses.  Although claimant 
 
         indicated he has had pain ever since his November 1987 injury, he 
 
         stated the long haul driving does not aggravate his back.  He 
 
         emphasized his back does not get better or worse.  Claimant 
 
         emphasized he is getting used to the pain.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There was considerable testimony as to claimant's likes or 
 
         dislikes with certain doctors.  There is testimony as to claimant 
 
         not getting along at the pain center and with Dr. Blessman. 
 
         Claimant contends that the involvement of Cecilia O'Brien, a 
 
         vocational rehabilitation expert hired by defendants, affected 
 
         his treatment with and the attitude of William R. Boulden, M.D., 
 
         concerning claimant's care, and also effected claimant's 
 
         dismissal from the pain clinic.  Claimant disagreed with 
 
         defendant employer's insubordination contention resulting in 
 
         claimant's firing in May 1988.  Claimant indicated that some 
 
         doctors did not release him for work and other doctors hired by 
 
         defendant employer released him to work.  He described what he 
 
         thought was a very short, limited exam by Dr. Boarini.
 
         
 
              Claimant testified he is presently off work due to a thumb 
 
         injury which has nothing to do with this present case.
 
         
 
              Judy Shelton, claimant's wife, testified that claimant did 
 
         not have back pain prior to the development of his November 12, 
 
         1987 injury.  She described claimant's pain as being so severe 
 
         that it took claimant's breath away.  She said claimant has 
 
         changed his activities and no longer mows the lawn, plays catch 
 
         or rides his motorcycle.  Mrs. Shelton testified she remembers 
 
         her husband's visit with Dr. Boarini.  She revealed her 
 
         suspicions when Cecilia O'Brien, the vocational rehabilitation 
 
         expert, proceeded to talk privately with Dr. Boarini prior to 
 
         claimant's medical exam.  Mrs. Shelton indicated Cecilia O'Brien 
 
         was not present during the exam itself.  Mrs. Shelton emphasized 
 
         she specifically timed the visit with Dr. Boarini because of her 
 
         suspicions.  She revealed claimant's exam lasted five minutes.  
 
         She said they waited ten minutes to see the doctor.
 
         
 
              Mrs. Shelton recalled the day claimant was requested to 
 
         return to work; namely, on or around May 20, 1988.  She said she 
 
         was driving claimant around due to the medicine he was taking.  
 
         She emphasized this medicine resulted in limited memory, 
 
         forgetfulness, sleepiness, and slower reaction.  She said 
 
         claimant was terminated on May 20, 1988.  Mrs. Shelton recalled a 
 
         particular day at the pain clinic when her husband had a 2:00 
 
         p.m. appointment with Dr. Blessman between classes.  She said 
 
         that claimant and she were still sitting for the appointment at 
 
         5:30 p.m. and then through the supper hour.  She said claimant 
 
         then interrupted Dr. Blessman to remind him.  She said Dr. 
 
         Blessman stated he was busy.  Mrs. Shelton revealed that shortly 
 
         thereafter claimant was kicked out of the program.
 
         
 
              Dennis W. Peterson, personnel manager of defendant employer, 
 
         testified at the hearing and also through a deposition taken 
 
         October 24, 1989.  He indicated he knows claimant and was 
 
         familiar with claimant's driving with defendant employer.  He 
 
         emphasized his intentions were to always put claimant with any 
 
         restrictions back to work at the same job.  He stated Cecilia 
 
         O'Brien, the vocational rehabilitation specialist, was interested 
 
         in the same goal.  He indicated Ms. O'Brien would accompany 
 
         claimant to his doctor appointments and make defendant employer 
 
         aware of claimant's progress and make sure the appropriate steps 
 
         were being taken to facilitate his return to work.  Mr. Peterson 
 
         admitted that he understood Dr. Boulden wrote on April 11, 1988 
 
         that "If Mr. Shelton was having the symptoms he was having that 
 
         he should not return to bus driving at that time."  He then 
 
         acknowledged that defendant insurance carrier, through Cecilia 
 
         O'Brien, decided to send claimant to Dr. Boarini.  He also 
 
         revealed that Dr. Boarini then gave claimant a full release with 
 
         no restrictions. Peterson said he understood Ms. O'Brien 
 
         accompanied claimant to the doctor's office.  He said claimant 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         immediately thereafter told him that the examination by Dr. 
 
         Boarini was short in duration. Peterson indicated claimant had a 
 
         release to return to work at this time from Dr. Blessman and Dr. 
 
         Boarini, but had an April 11, 1988 note from Dr. Boulden 
 
         indicating the opposite.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Peterson said he was ready to call claimant on May 18, 1988 
 
         to set up a return to work and a bus schedule that afternoon 
 
         when, in fact, claimant called him first.  Peterson acknowledged 
 
         claimant told him he was unable to return to work and also had 
 
         Dr. Boulden's letter, but felt Dr. Boarini was now the treating 
 
         doctor.  Peterson said he understood that claimant heard from 
 
         another source that claimant was scheduled to drive the afternoon 
 
         of May 18, 1988.  Peterson admitted claimant, a fourteen year 
 
         veteran driver, would be familiar with the duties, rights and 
 
         requirements of returning to work.
 
         
 
              Peterson acknowledged claimant had attempted to return to 
 
         light duty work in February 1988 and was able to last only one 
 
         week due to his pain.  Peterson said claimant did come to 
 
         defendant employer's office on May 18, 1988 with a note from 
 
         Craig A. Wignall, D.C., stating he would not be able to return to 
 
         work at that time.  Peterson said they then scheduled a 
 
         disciplinary hearing for May 20, 1988.  Peterson did not recall 
 
         having Dr. Haag's medical report regarding the medication 
 
         claimant was taking and the fact it affects a person's ability to 
 
         safely drive. Peterson acknowledged that he made the decision to 
 
         terminate claimant after the May 20, 1988 hearing.
 
         
 
              Peterson testified defendant employer has hired ten to 
 
         twenty new drivers since May 20, 1988.  Peterson acknowledged 
 
         that defendant employer has advertised for drivers and claimant 
 
         had, in fact, applied in May 1989 for a position.  Peterson 
 
         indicated he discussed with claimant that claimant would have to 
 
         establish some sort of work record since leaving MTA prior to 
 
         claimant really being a strong candidate for re-employment.  
 
         Peterson seemed to indicate this would help determine claimant's 
 
         ability to perform the job.  Peterson explained the reason 
 
         claimant was not hired was because defendant employer was looking 
 
         for a more qualified candidate, in other words, those with 
 
         experience, previous work record and references.
 
         
 
              Ms. O'Brien testified that she is a rehabilitation 
 
         consultant and registered nurse, and was hired by defendant.  She 
 
         described the information she obtained and her assessing 
 
         claimant's needs. She revealed her understanding of claimant's 
 
         dismissal from the pain center.  She acknowledged she talked to 
 
         Dr. Blessman and a staff member before Dr. Blessman finally saw 
 
         claimant, which visit resulted in claimant's termination from 
 
         further treatment.
 
         
 
              O'Brien contends that she understood claimant was disruptive 
 
         and did not follow the program at the pain center.  O'Brien 
 
         believed claimant did not want to work.  O'Brien admitted she set 
 
         up the appointment with Dr. Boarini even though Dr. Boulden was 
 
         the defendants' treating doctor before that date.  She indicated 
 
         Dr. Boarini then issued the claimant a return-to-work release. 
 
         O'Brien discussed claimant's desire to look into computer 
 
         programming employment.  O'Brien felt claimant's transferable 
 
         skills were in the truck driving business and not the computer 
 
         field.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              David J. Boarini, M.D., a neurosurgeon, testified through 
 
         his deposition on November 9, 1989 that he first saw claimant on 
 
         May 12, 1978 [1988] at the request of Cecilia O'Brien.  He said 
 
         claimant was using a TENS unit at that time.  Dr. Boarini said he 
 
         was not able to give the amount of time he spent with claimant, 
 
         but only related that it was a normal amount of time.  Later, on 
 
         cross-examination, Dr. Boarini estimated approximately 15 to 20 
 
         minutes as the time he spent with claimant.  Dr. Boarini at that 
 
         time reached a diagnosis as follows:  "I felt that he had 
 
         myofascial low back pain that was mechanical due to his 
 
         overweight, perhaps some early degenerative changes in his back 
 
         and mechanical in nature."  (Joint Exhibit 5, page 8)
 
         
 
              Dr. Boarini opined that claimant had no permanent impairment 
 
         or physical restrictions of any kind.  He thought because of 
 
         claimant's poor physical condition claimant should avoid heavy 
 
         lifting until he participated in some sort of a work hardening 
 
         program, but other than that no restrictions.  The doctor opined 
 
         that any complaint was a result of a natural aging, being in poor 
 
         condition, and being obese.  Dr. Boarini said that claimant's 
 
         over-the-road truck driving would not cause his current 
 
         complaints, but it would bring out the pain in a person who is 
 
         out of shape, overweight and has a back problem.  He said truck 
 
         driving would be an aggravating problem.  The doctor admitted he 
 
         was not putting claimant back to bus driving if claimant was 
 
         taking Valium or a muscle relaxer.  He indicated a daily bus 
 
         driving schedule might bring about pain or symptoms in claimant's 
 
         low back.  Although he would not say claimant did feel pain, he 
 
         concluded there was considerable signs that claimant was 
 
         exaggerating his symptoms.
 
         
 
              William R. Boulden, M.D., an orthopedic surgeon, testified 
 
         through his deposition on November 15, 1988, that he first saw 
 
         claimant on November 24, 1987 upon a referral from Dr. Haag.  Dr. 
 
         Boulden described the various tests he performed during 
 
         claimant's examination.  He formulated an opinion at that time 
 
         that claimant's pain was coming from marked tightness in his back 
 
         with underlying degenerative changes.  He said claimant returned 
 
         on December 3, 1987 after physical therapy treatment and had the 
 
         same complaint.  He indicated numbing medicine did not relieve 
 
         claimant's pain and the doctor indicated that he did not think 
 
         all of claimant's symptoms were related to the degenerative 
 
         changes to his back at that point.
 
         
 
              Dr. Boulden testified he recommended a work hardening 
 
         program for claimant in January 1988.  He acknowledged that he 
 
         and the rehabilitation specialist were trying to have claimant 
 
         return to light duty work on February 15, 1988.  He said claimant 
 
         indicated to him he did not go back to the work hardening because 
 
         the pain got worse.  Dr. Boulden said he then recommended 
 
         claimant be evaluated at a pain clinic by Dr. Blessman.
 
         
 
              Dr. Boulden said that on April 11  1988, when he saw 
 
         claimant after claimant had gone to the pain clinic, claimant 
 
         indicated he felt worse than before he went to the clinic.  Dr. 
 
         Boulden indicated at this point he felt he could no longer help 
 
         claimant get better from an orthopedic standpoint.  The doctor 
 
         emphasized he still felt claimant should try to go back to work 
 
         rather than sitting at home doing nothing.  Dr. Boulden testified 
 
         that claimant could not have gone back to work on April 11, 1988 
 
         to his regular full-duty status of bus driving at that point in 
 
         time because obviously he had been off work for a significant 
 
         period of time.  Dr. Boulden did feel there could be some ways 
 
         and means to modify things so claimant could get back to work.  
 
         On April 22, 1988, Dr. Boulden opined a 5 percent impairment to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant's back because of claimant's degenerative disc in his 
 
         back.  Dr. Boulden was asked and answered as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Doctor, based on the history given by Mr. Shelton and 
 
              other information available to you in your records, your 
 
              experience and background and education as an orthopedic 
 
              surgeon, do you have an opinion within a reasonable degree 
 
              of medical certainty as to whether or not the problem that 
 
              you diagnosed Mr. Shelton as suffering from is in any way 
 
              related to his employment as a bus driver for fifteen years 
 
              with the MTA?
 
         
 
                   ....
 
         
 
              A.  That opinion is that, first of all, we have to make sure 
 
              what diagnosis we're talking about here.  One, the patient 
 
              has a soft tissue problem which I called the myofascial 
 
              problem or the muscle tightness mobility, decreased mobility 
 
              problem.  Yes, I think that can be attributed to the fact 
 
              that he doesn't do much other than sits in a bus and 
 
              probably does not get a lot of physical activities other 
 
              than that.
 
         
 
                   Number two, we do not find that the underlying 
 
              degenerative disc disease was that symptomatic in the 
 
              patient.  As I said earlier, the facet block did not seem to 
 
              alleviate any of his symptoms; and it should have if the 
 
              symptoms were coming from the facets.  That's the only thing 
 
              we found to be abnormal from an objective standpoint on our 
 
              workup.  So I can say that the stiffness and the tightness 
 
              and the soreness he's having may have been attributed to the 
 
              chronic sitting he does with driving a bus....
 
         
 
              Q.  Could the underlying disc disease also be related to his 
 
              activities of bouncing and riding in a bus for fifteen 
 
              years?
 
         
 
              A.  It may,or may not.  I mean, we see that in people 
 
              without riding in a bus.  I mean, degenerative disc disease 
 
              is a diagnosis made by X rays.  Whether that's symptomatic 
 
              or not, you would then have to do further testing.  So it 
 
              may or may not have been caused by his bus driving.
 
         
 
         (Boulden Deposition, Joint Exhibit 2, pages 20-22)
 
         
 
              Dr. Boulden refused to opine whether claimant could return 
 
         to full-time bus driving.  He emphasized claimant has not really 
 
         shown the effort to try it.  He indicated he could not determine 
 
         whether claimant could do that work again without trying it.  Dr. 
 
         Boulden testified that claimant reached maximum healing on April 
 
         11, 1988.  Dr. Boulden was asked about his mentioning of 
 
         claimant's involvement with symptom magnification and the basis 
 
         for his opinion.  He answered:
 
         
 
              That opinion was based on:  one, the physical therapist's 
 
              input.  Number two, the Doctor Blessman at the Pain Center. 
 
              Number three, the work hardening program that he attended. 
 
              When I say symptoms out of proportion, I'm saying the pain, 
 
              subjective pain, that he was complaining of seemed to be out 
 
              of the norms that you would expect for the underlying 
 
              pathology that has been found in the patient.  So this is 
 
              just not my input.  This is a multitude of different 
 
              observers giving the same opinion.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 2, pp. 27-28)
 
         
 
              Dr. Boulden said he last saw claimant on September 13, 1988. 
 
         He said the restrictions he would recommend for claimant are:  1) 
 
         do not do things that entail bending and twisting with his back; 
 
         2) do not do prolonged sitting of 30 to 45 minutes at a time 
 
         without being able to get up and move about; 3) the same as to 
 
         standing in one spot with the same amount of time limitation; and 
 
         4) maintain a good functional exercise program for both mobility 
 
         and conditioning besides the weight reduction and a definite 
 
         change in body tone.  Dr. Boulden could not find a correlation 
 
         between claimant's restrictions and claimant's degenerative disc 
 
         disease and arthritis in his back.  Dr. Boulden also emphasized 
 
         that when he used the term "symptom magnification," he is not 
 
         saying claimant is intentionally voicing complaints that may or 
 
         may not be real to him.  He indicated such a person's pain is out 
 
         of proportion to what pain they are having.  He isn't denying 
 
         that claimant has pain.  Dr. Boulden opined that he believes 
 
         claimant lacks motivation.
 
         
 
              Stanley W. Haag, M.D., a family practitioner, testified 
 
         through his deposition on July 27, 1989 that the first time he 
 
         treated claimant for low back complaint was on December 26, 1986. 
 
         Dr. Haag testified that his records on claimant on April 4, 1988 
 
         show he had received conflicting recommendations from Dr. Boulden 
 
         and Dr. Blessman.  He testified he suggested a third opinion by 
 
         sending claimant to the Mayo Clinic.  He understood the insurance 
 
         company would not pay for the Mayo Clinic visit.  Dr. Haag said 
 
         he wrote at this time that "patient was not able to drive a bus 
 
         at this time.  He was dizzy.  His ears were ringing and he was 
 
         having trouble with sleepiness.  He could not pass the DOT 
 
         physical." (Haag Dep., Jt.  Ex. 3, p. 7)  Dr. Haag testified that 
 
         on April 18, 1988, he determined claimant's dizziness was the 
 
         result of antidepressant medicine prescribed at the pain clinic.  
 
         On April 28, 1988, Dr. Haag concludes that he could not do 
 
         anything more for claimant and suggested claimant see his 
 
         partner, Dr. Miller, for osteopathic manipulations.  Dr. Haag 
 
         said this did not solve claimant's problems.
 
         
 
              Dr. Haag opined that claimant's bus driving aggravated his 
 
         back.  He indicated Dr. Boulden was of the opinion that 
 
         claimant's work had contributed to claimant's back discomfort and 
 
         wrote him a note to that effect.  Dr. Haag opined a permanent 
 
         impairment but said he was not qualified to give a rating.  Dr. 
 
         Haag emphasized that in April or May 1988, claimant was not able 
 
         and should not have been driving a bus at that time, but mostly 
 
         because of the medication and pain discomfort.  Dr. Haag said 
 
         claimant was taking Flexoral, a muscle relaxant, which slows your 
 
         reflex time and Amitriptyltine, an antidepressant, from which 
 
         claimant was having side effects of dizziness, sleepiness and 
 
         ringing in the ears.
 
         
 
              Craig A. Wignall, D.C., testified through a deposition on 
 
         October 26, 1989, that he first treated claimant on July 23, 1987 
 
         for painful low back that was hurting up to claimant's neck.  Dr. 
 
         Wignall said claimant's muscles, even in a relaxed state, were 
 
         very tight and rigid throughout his whole back.  He said the last 
 
         time he saw claimant was in March 1989 at which time claimant 
 
         basically had the same complaints.  Dr. Wignall opined that 
 
         claimant's occupation would certainly be a contributing factor, 
 
         not necessarily a causative factor, to claimant's condition.  The 
 
         doctor could not say whether claimant's condition was permanent 
 
         unless he attempted to work on claimant almost every day and see 
 
         any response.  Dr. Wignall said he wrote the April 1988 note 
 
         keeping claimant off work to prevent any further irritation.  He 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         acknowledged that claimant had gone to a neurosurgeon who 
 
         released claimant to return to work.  Dr. Wignall emphasized that 
 
         he did not feel claimant had any business going back to work in 
 
         his condition.  Dr. Wignall agreed that sitting in a city bus 
 
         driving full-time, eight hours a day, five days a week for 
 
         fifteen years, and bouncing along in a city bus would be the kind 
 
         of microtraumas which could contribute to claimant's condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On November 24, 1987, Dr. Boulden wrote Dr. Haag and stated: 
 
         "It is my opinion that the type of work he does has probably 
 
         caused this." (Jt. Ex. 1, p. 18)  On January 25, 1988, Dr. 
 
         Boulden wrote a letter to Dr. Haag:  ...and we feel he will 
 
         probably need a TENS unit on a permanent basis." (Jt. Ex. 14)  On 
 
         July 15, 1988, Dr. Boulden wrote:  "It is my feeling that as of 
 
         4-11-88 he reached his maximum healing period.  It would also be 
 
         my recommendation that his permanency be 5% of the back based on 
 
         aggravation of the underlying degenerative disc disease." (Jt. 
 
         Ex. 1, p. 9)  On December 28, 1987, Dr. Haag wrote:  "I too, am 
 
         inclined to agree with Dr. Boulden that Mr. Shelton's back pain 
 
         has been caused by his employment as an MTA Bus Driver.  At the 
 
         least, this occupation has aggravaited [sic] his condition.  (Jt. 
 
         Ex. 1, p. 59)  On April 4, 1988, Dr. Haag's notes at Mercy 
 
         Medical Clinic reflect the following, in part:
 
         
 
                   Has been in pain center for 2 weeks - pain got worse. 
 
              Dr. at pain center said he could go back to work.
 
         
 
                   Med from pain center makes him sleepy, dizzy.  Ear ring 
 
              for 2 weeks.
 
         
 
                   Conflict in recommendations from Dr. Boulden & Dr. 
 
              Blessman.
 
         
 
                   Pt unimproved [illegible] pain center.
 
         
 
                   No [illegible].
 
         
 
                   Recommend consultant another facility.  Mayo Clinic. 
 
              This pt is not able to drive a bus at this time.
 
         
 
                   Pt is dizzy, ear ringing & sleepy.
 
         
 
                   No way to drive a bus.
 
         
 
         (Jt. Ex. 1, p. 6)
 
         
 
              On May 19, 1988, Dr. Haag wrote:
 
         
 
                   The above patient has been under my care for chronic 
 
              back problems.  It is my understanding that his Company's 
 
              Doctor has released him to work without restriction.  I 
 
              would have no objection to this patient attempting to return 
 
              to his employment, except that I do have concerns regarding 
 
              the patient's ability to drive a City bus while taking the 
 
              following prescribed medications.
 
         
 
              Parafon Forte 1 QID
 
         
 
              Diazepam 5 mmg. 1 1/2 or 1 TID
 
         
 
                   In my opinion, he should not be driving a bus while 
 
              taking the above prescribed medications.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 1, p. 57)
 
         
 
              The Mercy Medical Clinic notes show in particular, but not 
 
         limited thereto, various medicines that were prescribed for 
 
         claimant between the period of April 18, 1988 through June 27, 
 
         1988.
 
         
 
              On May 27, 1988, Dr. Boarini wrote:
 
         
 
                   I think this patient has some myofascial low-back pain 
 
              which is mechanical in nature and due largely to his obesity 
 
              and poor physical conditioning.  I don't see any evidence of 
 
              a significant injury.  I find no basis for giving him an 
 
              impairment rating and would put him on no work restrictions.
 
         
 
                   I do think that a weight loss program and a work 
 
              hardening physical therapy program would be greatly to his 
 
              benefit.  I think he can return to work at any time.  I 
 
              expect him to have no permanent restrictions but would avoid 
 
              any repetitive or heavy lifting until he completes a work 
 
              hardening program.
 
         
 
         (Jt. Ex. 1, pp. 101-102)
 
         
 
              On May 12, 1988, Dr. Boarini gave claimant a slip to return 
 
         to work on May 16, 1988.  On March 31, 1988, Robert W. Jones, 
 
         B.S., a vocational evaluator at the Mercy Hospital Medical Pain 
 
         Center, concluded in a report:
 
         
 
                   In conclusion, it is this evaluator's impression Wayne 
 
              currently does not have any intention of returning to any 
 
              kind of competitive employment in the near future, or ever 
 
              if he can avoid doing so.  The only recommendation is to 
 
              have the patient evaluated for a permanent partial 
 
              impairment rating and to settle his Work Comp case.
 
         
 
         (Jt. Ex. 1, p. 108)
 
         
 
              James Blessman, M.D., indicated in a report on April 7, 
 
         1988, that he believed claimant has "symptom magnification and 
 
         secondary gained behavior." (Jt. Ex. 1, p. 120)  Exhibit 16 
 
         reflects the job service decision which allowed claimant 
 
         unemployment benefits.  The administrative law judge in that 
 
         matter noted the confusing or conflicting medical information on 
 
         the claimant regarding whether he could return to work.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 12, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516,  133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 
 
         252 Iowa 613, 106 N.W.2d 591.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Iowa Code section 85.34(i) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that a disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in a gradual 
 
         injury case is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincides with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         the claimant's claim under Iowa Code section 85.26 and notice 
 
         under Iowa Code section 85.23.
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984)
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that exists. 
 
         Varied Enterprises, Inc., 353 N.W. 2d 407; Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, 
 
         Workmen's Compensation Law,  59.22; 22 Am.Jur.2d  122; 2 
 
         Damages & Tort Actions  15.34[l](a).
 
         
 
              Claimant is a 41-year-old high school graduate.  He has 
 
         basically been a truck or bus driver during his entire adult 
 
         life. He drove a bus for defendant employer beginning November 
 
         1973 until November 11, 1987, when he last worked for defendant 
 
         employer.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant alleged he was injured on November 12, 1987 as the 
 
         result of a cumulative injury to his low back.  Claimant drove a 
 
         city bus for defendant employer for approximately fourteen years 
 
         before he was injured.  Sitting in one position for a 
 
         considerable length of time hour after hour, day after day riding 
 
         and driving a bus or truck can and often does result in the 
 
         driver incurring back problems.  Usually, the problems develop 
 
         cumulatively over a period of time and not through one trauma or 
 
         incident.  Claimant appears to have a degenerative disc disease.  
 
         The greater weight of evidence shows the degenerative disc 
 
         disease itself is not caused by an injury.  Dr. Boulden, an 
 
         orthopedic surgeon, could not find that an underlying 
 
         degenerative disc disease was that symptomatic in a patient.  It 
 
         appears the stiffness, tightness and soreness claimant was having 
 
         is attributed to the chronic sitting claimant does while driving 
 
         a bus.  There is conflicting or confusing medical testimony.  The 
 
         undersigned accepts as more accurate Dr. Boulden's and Dr. Haag's 
 
         opinion that claimant's back pain has been caused by claimant's 
 
         employment with defendant employer.  Although there is a close 
 
         question whether claimant's years of driving a bus caused the 
 
         underlying disc disease, the undersigned finds a greater weight 
 
         of the evidence indicates claimant had a preexisting degenerative 
 
         disc disease.  The undersigned finds that this preexisting 
 
         disease was materially worsened, aggravated and lighted up by 
 
         claimant's fourteen years of bus driving.
 
         
 
              Dr. Boulden opined a 5 percent permanent impairment to 
 
         claimant's back based on the fact of the underlying degenerative 
 
         disc disease.  Dr. Haag was claimant's regular medical doctor to 
 
         whom claimant originally had gone.  At the time, it is obvious 
 
         claimant was not thinking a work injury but was going to a doctor 
 
         for his complaint.  Dr. Haag referred claimant to Dr. Boulden who 
 
         then became an employer-accepted doctor and was considered 
 
         claimant's treating physician.
 
         
 
              Claimant contends he was getting no better as a result of 
 
         considerable medical services provided him.  Dr. Haag referred 
 
         claimant to Dr. Boulden because he could not find adequate relief 
 
         for claimant.  Dr. Boulden gave up trying to solve claimant's 
 
         problems.  Dr. Blessman, at a pain clinic, terminated claimant 
 
         from the program earlier than what was originally anticipated.  
 
         Dr. Haag, seeing a possible medical impasse, suggested claimant 
 
         go to Mayo Clinic.  This appeared to be a very logical suggestion 
 
         and would result in a more unbiased medical conclusion.  The 
 
         defendants had hired a Ms. O'Brien as a vocational rehabilitation 
 
         consultant. It appears her appearance in the sequence of events 
 
         was not a plus. Her style and approach seemed to alienate 
 
         claimant.  Claimant's attitude is not free from fault either.  
 
         Although it is permissible, the actions of Ms. O'Brien preceding 
 
         claimant's medical visits and the visits themselves, particularly 
 
         Drs. Blessman, Boarini and Boulden, may have biased or tainted 
 
         medical judgments, attitudes and services being rendered to 
 
         claimant. Claimant contends that the involvement of Ms. O'Brien 
 
         affected his medical treatment and the doctors' attitudes.  The 
 
         undersigned agrees at least in part with claimant's contention.  
 
         Dr. Haag testified his records on April 4, 1988 show conflicting 
 
         recommendations from Dr. Boulden and Dr. Blessman, two 
 
         company-authorized doctors.  Why didn't Ms. O'Brien, on behalf of 
 
         the insurance company, accept Dr. Haag's suggestion for a third 
 
         opinion by his recommendation of Mayo Clinic?  It is obvious to 
 
         the undersigned why the insurance carrier indicated they would 
 
         not pay for claimant's visit to Mayo Clinic.  Mayo Clinic is too 
 
         unbiased. Ms. O'Brien picked Dr. Boarini for claimant.  She was 
 
         searching for someone in her experience that was most likely to 
 
         provide her and her client with a work release for this claimant.  
 
         She indicated Boulden then was no longer the employer-authorized 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         treating physician.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant and his wife described the nature of Dr. Boarini's 
 
         examination of claimant on May 12, 1988.  The undersigned 
 
         believes claimant's wife as she described how she became 
 
         suspicious of the circumstances surrounding the appointment, 
 
         exam, and Ms. O'Brien's preexamination consultation with the 
 
         doctor.  Mrs. Shelton timed the visit as being approximately five 
 
         minutes.  Dr. Boarini issued a work release with no restrictions 
 
         after the visit providing for claimant's return to work on May 
 
         16, 1988.  Ms. O'Brien conveyed this message to defendant 
 
         employer shortly thereafter.  Claimant was scheduled for a bus 
 
         driver route to begin May 18, 1988. Claimant heard of this 
 
         through a driver friend and called defendant employer, who 
 
         confirmed this.  Defendants and Ms. O'Brien completely 
 
         disregarded the other doctors who had not issued a work release.  
 
         Claimant, also being surprised by the doctors' actions and the 
 
         conflicting medical advice, went to his former doctor who 
 
         indicated claimant should not be released and that he should not 
 
         be driving a bus.  On May 19, 1988, Dr. Haag warned defendants 
 
         that claimant should not be driving as he was on prescribed 
 
         medication that would affect claimant's ability to drive. (Jt. 
 
         Ex. 1, p. 57).  It would appear the public's safety as well as 
 
         claimant's could be at stake.
 
         
 
              Defendant employer set up an immediate hearing that took 
 
         place on May 20 which resulted in claimant's termination for 
 
         insubordination.  Defendant takes pride in this proceeding by 
 
         emphasizing claimant had union representation and that it was 
 
         upheld by the company on its appeal to a higher company official. 
 
         It is obvious by the facts presented and the decision rendered 
 
         that defendant employer's mind was made up and the employer was 
 
         only going through the necessary motions.  Dennis Peterson 
 
         admitted that he understood Dr. Boulden did not release claimant. 
 
         Mr. Peterson's credibility, if not already destroyed, was 
 
         completely destroyed by his comment that he could not accept 
 
         claimant as a strong candidate when claimant reapplied for a job 
 
         in May 1989, because he was looking for a more qualified 
 
         candidate; in other words, one who has experience, previous work 
 
         record and references.  Peterson emphasized claimant would have 
 
         to establish some sort of work record since leaving MTA prior to 
 
         really being a strong candidate for re-employment.  Claimant was 
 
         a fourteen year veteran with MTA before receiving a work-related 
 
         injury in November 1987.  Peterson, as personnel manager for 
 
         defendant employer, admitted he was familiar with claimant.
 
         
 
              Joint exhibit 16 helps reflect on what a nonbiased 
 
         administrative law judge thought of defendants' conduct.  That 
 
         judge had before him the medical information defendants had from 
 
         their own authorized doctors and others.  Claimant was allowed 
 
         unemployment benefits.  The law judge referred to the conflicting 
 
         medical reports.
 
         
 
              If Ms. O'Brien was as aggressive in trying to convince 
 
         defendant employer to rehire claimant as she was in her other 
 
         activities involving the claimant, the undersigned believes 
 
         defendant employer should have rehired claimant in 1989, 
 
         especially in light of the McSpadden case.  It appears Ms. 
 
         O'Brien was more interested in getting claimant off workers' 
 
         compensation than getting claimant back to work he could perform.  
 
         The undersigned paid close attention to the demeanor of the 
 
         witnesses as they testified and as others were testifying.  
 
         Particular notations were made throughout the hearing.  The 
 
         undersigned finds Cecilia O'Brien and Dennis Peterson not to be 
 
         credible witnesses.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned finds that claimant incurred a work-related 
 
         cumulative low back injury on November 12, 1987.  It is further 
 
         found that claimant had a preexisting degenerative disc condition 
 
         which was materially aggravated, worsened and lighted up by his 
 
         November 12, 1987 cumulative injury.  Claimant has a 5 percent 
 
         permanent impairment to his back which was caused by his November 
 
         12, 1987 injury.
 
         
 
              Claimant contends his healing period began November 12, 1987 
 
         through June 17, 1988, inclusive.  Defendants contend that 
 
         claimant's healing period, if any, begins November 12, 1987 to 
 
         and including April 11, 1988.  Dr. Boulden wrote on April 11, 
 
         1988 that claimant reached maximum recovery on April 11, 1988 
 
         (Jt. Ex. 1, p. 9)  The undersigned finds that claimant's healing 
 
         period began November 12, 1987 through April 11, 1988, which 
 
         involves 21.714 weeks.
 
         
 
              There have been references in claimant's medical records or 
 
         in medical testimony that he is a symptoms magnifier.  Dr. 
 
         Boulden said he is not accusing claimant of intentional conduct.  
 
         He said one's perception of pain is out of proportion to what 
 
         pain they are having.  He did not deny claimant was having pain.  
 
         Claimant is not completely without fault in the problems he has 
 
         with the doctors even though there is reason for claimant to have 
 
         become disenchanted.  The undersigned believes claimant's wife is 
 
         credible.  It is unexplainable why claimant was left sitting for 
 
         several hours to see Dr. Blessman for a previously set 2:00 p.m. 
 
         appointment.  I have already touched on some of these areas 
 
         previously.
 
         
 
              Claimant has been a truck or bus driver most of his adult 
 
         life.  Defendants contend claimant lacks motivation.  Some 
 
         doctors also refer to this.  The record does show that claimant 
 
         was choosey and did not earnestly seek every job possibility.  He 
 
         knew his capability.  It is reasonable to try to find a job that 
 
         may be of long duration rather than jumping to and from many low 
 
         paying jobs while searching for a job that is suitable.  Claimant 
 
         appears to have found a job in his field.  His current job 
 
         appears to be more demanding and harder; in other words, long 
 
         distance over-the-road, 18-wheel semi truck driver versus a City 
 
         of Des Moines bus driver.  Claimant is making as much if not more 
 
         than he was making at the time of his injury.  Given the nature 
 
         of the job, it is reasonable to believe that the truck driving 
 
         job would pay more. claimant is presently able to perform his 
 
         duties.  He said he has gotten used to enduring the pain.  
 
         Defendants contend claimant has reinjured or aggravated his back 
 
         condition on these subsequent jobs, including his present job.  
 
         Claimant has an impairment, so it is to be expected that claimant 
 
         will suffer pain and feel his permanent impairment in his current 
 
         job or any job he may have in the future.  That is the problem 
 
         with having incurred a permanent impairment, particularly to 
 
         one's low back.  There is insufficient evidence to show 
 
         claimant's current condition is a result of any new injury 
 
         incurred after the November 12, 1987 injury.  Any industrial 
 
         disability finding will be based on the current facts and 
 
         claimant's employment.  What the future holds is only 
 
         speculative.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned finds claimant is motivated.  Claimant's 
 
         present impairment has reduced his earning capacity.  Earnings 
 
         and earning capacity are two different things.  Claimant is 
 
         fortunate to have his current job that makes full use of his 
 
         transferable skills.  Claimant's age is to his benefit.  Claimant 
 
         desires to be a bus driver again.  This job would be much better 
 
         considering claimant's impairment than the rigors of his current 
 
         job. Claimant's termination in the employer's hearing was a 
 
         subterfuge. The outcome was determinable before the hearing.  
 
         Defendants contend they complied with McSpadden because they 
 
         offered claimant a job in May 1988 and he refused it.  Claimant 
 
         was in no condition to take a bus driving job at that time.  At 
 
         least part of the medicine claimant was taking could affect his 
 
         bus driving and was prescribed by Dr. Blessman at the pain 
 
         clinic.  Defendants totally disregarded the medical evidence as a 
 
         whole and refused to send claimant to one of the most qualified 
 
         and nonbiased medical institutions, Mayo Clinic.  The undersigned 
 
         finds defendants refused to rehire claimant and it is immaterial 
 
         in that regard that claimant is employed by someone else.  
 
         Claimant's current employment does reduce the extent of 
 
         claimant's industrial disability, but does not eliminate it as 
 
         defendants contend. Taking into consideration all those many 
 
         items to be considered in determining claimant's industrial 
 
         disability, including the consideration of McSpadden, the 
 
         undersigned finds claimant has a 15 percent industrial 
 
         disability.  These benefits shall begin April 12, 1988 at the 
 
         rate of $264.29 per week.
 
         
 
              The remaining issue is claimant's entitlement to 85.27 
 
         benefits.  The only evidence as to specific bills appear to be 
 
         reflected in joint exhibit 7, page 31.  Defendants contend Dr. 
 
         Wignall, a chiropractor, was not authorized nor was Dr. Haag, 
 
         whose bills are $225.00 and $521.19, respectively.  Dr. Haag was 
 
         claimant's family doctor to whom claimant went not thinking at 
 
         the time that he had a workers' compensation injury.  Dr. Haag's 
 
         treatment was beneficial to claimant.  Dr. Haag referred claimant 
 
         to Dr. Boulden, who then was accepted by defendants as claimant's 
 
         treating physician.  The undersigned finds that defendants are 
 
         responsible for the bill of Dr. Haag at Hilltop Clinic in the 
 
         amount of $521.19 and the Mercy Hospital bill in the amount of 
 
         $145.00.  Defendants are not responsible for the chiropractor 
 
         bill of Dr. Wignall in the amount of $225.00.
 
         
 
              1.  Claimant incurred a work-related cumulative injury to 
 
         his low back on November 12, 1987.
 
              
 
              2.  Claimant's work-related low back injury is the result of 
 
         his November 12, 1987 injury.
 
         
 
              3.  Claimant has a 5 percent permanent impairment to his 
 
         back as a result of his work-related cumulative injury on 
 
         November 12, 1987.
 
         
 
              4.  Claimant reached maximum healing period on April 11, 
 
         1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Claimant incurred a healing period beginning November 
 
         12, 1987 to and including April 11, 1988, which involved 21.714 
 
         weeks.
 
         
 
              6.  Claimant is earning as much if not more money from his 
 
         current employment than he was at the time of his November 12, 
 
         1987 injury.
 
         
 
              7.  Defendants refused to rehire claimant in May 1989 even 
 
         though defendants were advertising for bus drivers.
 
         
 
              8.  Defendants refused to rehire claimant in May 1989 
 
         because claimant was not a sufficiently qualified candidate with 
 
         work experience, previous work record and references, even though 
 
         claimant had previously driven a bus for fourteen years for 
 
         defendant employer before he received a work-related injury.
 
         
 
              9.  Claimant has a loss of earning capacity as a result of 
 
         his November 12, 1987 injury.
 
         
 
              10.  Defendants are responsible for claimant's medical bills 
 
         in the amount of $521.19 with Hilltop Clinic (Dr. Haag), and a 
 
         Mercy Hospital bill in the amount of $145.00.
 
         
 
              11.  Defendants are not responsible for claimant's 
 
         chiropractor bill in the amount of $225.00 with Dr. Wignall.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's cumulative low back injury on November 12, 1987 
 
         arose out of and in the course of claimant's employment.
 
         
 
              Claimant's low back injury and 5 percent permanent partial 
 
         impairment to his back is causally connected to his cumulative 
 
         work injury on November 12, 1987.
 
         
 
              Claimant reached maximum recovery on April 11, 1988.
 
         
 
              Claimant incurred a healing period beginning November 12, 
 
         1987 to and including April 11, 1988, which involved 21.714 
 
         weeks.
 
         
 
              Claimant has a 15 percent industrial disability.
 
         
 
              Defendants are responsible for claimant's medical bills in 
 
         the amount of $521.19 with Hilltop Clinic (Dr. Haag), and a Mercy 
 
         Hospital bill in the amount of $145.00.
 
         
 
              Defendants are not responsible for claimant's chiropractor 
 
         bill in the amount of $225.00 with Dr. Wignall.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits beginning November 12, 1987 through April 11, 1988, 
 
         encompassing twenty-one point seven one four (21.714) weeks at 
 
         the rate of two hundred sixty-four and 29/100 dollars ($264.29) 
 
         per week.
 
         
 
              That defendants shall pay unto claimant seventy-five (75) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred sixty-four and 29/100 dollars ($264.29), commencing April 
 
         12, 1988.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the medical bill of Hilltop Clinic 
 
         (Dr. Haag) in the amount of five hundred twenty-one and 19/100 
 
         dollars ($521.19), and the Mercy Hospital bill in the amount of 
 
         one hundred forty-five dollars ($145.00).  Defendants are not 
 
         responsible for Dr. Wignall's bill in the amount of two hundred 
 
         twenty-five dollars ($225.00).
 
         
 
              That defendants shall pay the costs of those actions, 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file a claim activity report upon 
 
         payment of this award as requested by this agency, pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 26th day of January, 1990.
 
         
 
         
 
                                       
 
                                       
 
                                       
 
                                       
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER 
 
                                       
 
         Copies to:
 
         
 
         Mr Stephen W Spencer
 
         Attorney at Law
 
         218 6th Ave Ste 300
 
         P 0 Box 9130
 
         Des Moines, IA  50306
 
         
 
         Mr E. J. Kelly
 
         Attorney at Law
 
         Terrace Center Ste 111
 
         2700 Grand Ave
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51108; 1807; 51803
 
                                            Filed January 26, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE SHELTON,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                    File No. 871201
 
         METRO TRANSIT AUTHORITY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51108
 
         
 
              Found claimant's low back work injury and 5% impairment to 
 
         his body as a whole causally connected.
 
         
 
         1807
 
         
 
              Defendants' refusal to rehire claimant increased claimant's 
 
         industrial disability under McSpadden.
 
         
 
         51803
 
         
 
              Claimant awarded a 15% industrial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LB,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. (call for #)
 
            AASE HAUGEN HOMES, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            CONTINENTAL LOSS ADJUSTING     
 
            SERVICES, INC.,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                    ISSUES
 
            
 
            The issues on appeal are:  The extent of claimant's 
 
            disability and entitlement to disability benefits and the 
 
            rate at which the benefits are to be paid.
 
                                FINDINGS OF FACT
 
            
 
            Claimant began working for defendant employer in January 
 
            1987.  (Transcript, page 80)  Prior to that time she had 
 
            worked as a kitchen interior designer, a waitress, and in a 
 
            furniture upholstering store.  (Tr., p. 86)  When she began 
 
            work for defendant employer she was paid $5.75 per hour.  
 
            (Tr., pp. 80-81)
 
            Claimant was 26 years old on August 21, 1987, the date of 
 
            her injury and had one child.  She is a high-school graduate 
 
            and has received a degree in interior design from Northeast 
 
            Iowa Technical Institute.  She also has an LPN certificate 
 
            and was studying for her RN degree.  She stated that prior 
 
            to her injury she had an agreement with defendant employer 
 
            that she could work part-time as an LPN on the night shift 
 
            and continue schooling full-time.  Her schooling was at 
 
            Northeast Iowa Technical Institute.
 
            On August 21, 1987, while at work, she slipped and fell and 
 
            landed on her right buttocks.  She eventually sought medical 
 
            treatment.  She was first seen by Charles Van Norman, M.D., 
 
            who took her off work.  Conservative treatment did not 
 
            resolve her condition and Dr. Van Norman transferred her 
 
            care to Mayo Clinic.  On January 8, 1988 M.J. Ebersold, 
 

 
            
 
            Page   2
 
            
 
            
 
            M.D., at the Mayo Clinic performed a partial hemilaminectomy 
 
            and removal of an extruded disc fragment at the L-5 level.  
 
            (Exhibit 3, p. 13)
 
            Claimant testified that she was released to return to work 
 
            in April 1988 with a 20 pound lifting restriction (Tr., pp. 
 
            67-69)  Claimant returned to work part-time working the 3-11 
 
            shift instead of her former shift of 11-7 (Tr., p. 70)  
 
            Claimant testified that she was unable to continue pursuit 
 
            of her RN degree because of the lifting restrictions.  (Tr., 
 
            p. 72)  At the time of the injury claimant had completed 
 
            three-fourths of the study necessary for the RN degree.  In 
 
            a letter dated April 25, 1988 Melinda Hanson, R.N., Program 
 
            Coordinator, Northeast Iowa Technical Institute, informed 
 
            claimant that she could not register for any nursing courses 
 
            with a clinical component while the weight restriction was 
 
            in effect.  Hanson suggested an alternate course of study.  
 
            (Ex. 8, p. 1)
 
            Claimant began working full-time for defendant employer in 
 
            the fall of 1989.  (Tr., p. 70)  She testified that her 
 
            physical activities and ability to travel in a car are 
 
            limited.  Defendant employer's job description of charge 
 
            nurse indicates that there must be an ability to lift, push, 
 
            pull and move a minimum of 50 pounds.  (Ex. 11, p. 4)  
 
            Claimant works for defendant employer within her 
 
            restrictions.  (Tr., p. 88)  At the time of the hearing, 
 
            claimant was earning $11.81 per hour.  (Tr., p. 84)
 
            William J. Litchy, M.D., from the Mayo Clinic's Department 
 
            of Neurology assigned claimant an 11 percent permanent 
 
            partial disability on July 7, 1988.  (Ex. 3, p. 20)  Dr. 
 
            Litchy initially did not suggest restrictions (Ex. 3, p. 14) 
 
            but later imposed a 20 pound lifting restriction in a letter 
 
            dated March 22, 1989.  (Ex. 14)
 
            Scott E. Streator, a vocational consultant, testified and 
 
            his report was in evidence.  (Ex. 4)  His report explained 
 
            how he arrived at his conclusion that claimant had a reduced 
 
            labor market access and a loss of earnings capacity.
 
            Claimant testified that prior to her injury she worked 
 
            part-time for defendant employer.  In the 16 biweekly pay 
 
            periods preceding and including her injury (January 13, 1987 
 
            through August 29, 1987) she worked between 32 and 64 hours 
 
            in a biweekly period.  (Ex. 6, p. 1)  Prior to working for 
 
            defendant employer she last worked in 1985.  (Ex. 6, p. 1)  
 
            In the 12 calendar months preceding the injury claimant had 
 
            $3,963.30 earnings from defendant employer (Ex. 6, p. 1)  
 
            (January 13, 1987 through August 15, 1987)  Claimant 
 
            apparently had no other income in the 12 calendar months 
 
            preceding the injury.  Her income for this period was 
 
            $3,963.30.
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The first issue to be resolved is the extent of claimant's 
 
            industrial disability.  The parties have stipulated claimant 
 
            has a permanent partial disability and the commencement of 
 
            permanent partial disability benefits is April 9, 1988.
 
            
 
                 The party who would suffer loss if an issue were not 
 

 
            
 
            Page   3
 
            
 
            
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 

 
            
 
            Page   4
 
            
 
            
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            Claimant was 26 years old at the time of her injury.  She 
 
            had surgery to treat her lower back condition.  Claimant's 
 
            work experience and education indicate that she is capable 
 
            of further training and other vocational pursuits.  She has 
 
            had no loss of actual earnings and in fact is earning 
 
            approximately twice as much as she was at the time of the 
 
            injury.  Claimant has demonstrated good motivation by 
 
            returning to work and previously achieving post-high school 
 
            education.  Claimant does have an 11 percent functional 
 
            impairment and a 20 pound lifting restriction.  The lifting 
 
            restriction precludes her from completing her RN degree.  
 
            The RN type of employment for which claimant is suited is 
 
            unavailable to claimant.  Claimant has returned to full-time 
 
            work with defendant employer who allows claimant to work 
 
            within her restrictions.  Claimant's access to the labor 
 
            market has been reduced.  When all relevant factors are 
 
            considered claimant has suffered a forty percent industrial 
 
            disability because of her work injury.  It should be noted 
 
            that determining industrial disability is the responsibility 
 
            of the industrial commissioner.  A vocational consultant may 
 
            give an opinion as to loss of earnings and access to the 
 
            labor market, but this agency, as the finder of fact, 
 
            determines industrial disability.
 
            The next issue to be resolved is the rate of weekly 
 
            benefits.  Claimant considered herself to be part-time.  The 
 
            evidence (Ex. 6) supports the fact that she was part-time as 
 
            she never worked more than 64 hours in a two-week period.  
 
            She was a part-time employee.  From this record it is 
 
            unclear what the usual weekly earnings of a regular 
 
            full-time adult LPN in the defendant employer's locality 
 
            would be.  Nonetheless, claimant was a part-time employee.  
 
            Claimant was not an apprentice nor a trainee for defendant 
 
            employer and therefore Iowa Code section 85.36(10)(b) is not 
 
            applicable.
 
            Claimant's rate is to be calculated under Iowa Code section 
 
            85.36(10) first unnumbered paragraph which provides:
 
               If an employee earns either no wages or less than the 
 
            usual weekly earnings of the regular full-time adult laborer 
 
            in the line of industry in which the employee is injured in 
 
            that locality, the weekly earnings shall be one-fiftieth of 
 
            the total earnings which the employee has earned from all 
 
            employment during the twelve calendar months immediately 
 
            preceding the injury.
 
            Claimant's gross earnings are therefore calculated based on 
 
            one-fiftieth of the total earnings which the employee would 
 
            have earned from all employment during the twelve calendar 
 
            months immediately preceding the injury.  The record 
 
            reflects that claimant's total earnings from all employment 
 

 
            
 
            Page   5
 
            
 
            
 
            during the twelve months preceding her injury equaled 
 
            $3,963.30.  Divided by 50, this yields an average gross 
 
            weekly wage of $79.27.  The evidence in this record 
 
            indicates claimant was single and entitled to two 
 
            exemptions.  Claimant's rate of weekly benefits is $72.94.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That defendants are to pay unto claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of seventy-two and 94/100 dollars ($72.94) per week from 
 
            April 9, 1988.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendants shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants are to be given credit for benefits 
 
            previously paid plus the amount of payments tendered.
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis G. Larson
 
            Attorney at Law
 
            312 W. Main St.
 
            Decorah, Iowa 52101
 
            
 
            Ms. Deborah A. Dubik
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, Iowa 52801
 
            
 
            
 
 
            
 
 
 
 
 
                                           5-1803; 5-3001
 
                                           Filed November 30, 1993
 
                                           Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            LB,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. (call for #)
 
            AASE HAUGEN HOMES, INC.,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            CONTINENTAL LOSS ADJUSTING      
 
            SERVICES, INC.,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
          
 
            5-1803
 
            Claimant was 26 years old at time of injury.  She had an 11 
 
            percent impairment and a 20 pound lifting restriction.  She 
 
            had a LPN degree but could not pursue RN degree because of 
 
            restrictions.  She was determined to have a 40 percent 
 
            industrial disability.
 
            
 
            5-3001
 
            Claimant was a part-time employee who worked no more than 32 
 
            hours per week as an LPN at time of injury.  She was also 
 
            going to school full time (she was 26 years old).  Rate 
 
            determined by using Iowa Code section 85.36(10) and dividing 
 
            income in 12 calendar months preceding the injury by 50 to 
 
            determine gross weekly earnings.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LB,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. (call for #)
 
            AASE HAUGEN HOMES, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING    :
 
            SERVICES, INC.,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 15, 1993, at 
 
            Dubuque, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            August 21, 1987.  The record in the proceeding consists of 
 
            the testimony of claimant, and claimant's mother, Consuelo 
 
            Isella Sperry, and Scott Streator; and, joint exhibits 1 
 
            through 14.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's disability and entitlement 
 
            to disability benefits;
 
            
 
                 2.  The rate at which the benefits are to be paid;
 
            
 
                 3.  The credit that is to be given defendants 
 
            concerning any payments previously paid; and,
 
            
 
                 4.  Interest on payments made but checks not cashed, if 
 
            any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant was 26 years old on August 21, 1987, the date 
 
            of her injury.  Claimant is approximately 31 years old at 
 
            the date of the hearing and is a high school graduate.  
 
            Claimant related her post-high school education in which she 
 
            received an interior design and associate of arts degree and 
 
            an LPN certificate working toward her RN.  She obtained 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            these two degrees or certificates in 1985 and 1986, 
 
            respectively.
 
            
 
                 Claimant started working for defendant employer around 
 
            the end of 1987.
 
            
 
                 Claimant testified that she continued her education 
 
            toward the RN and had an agreement with defendant employer 
 
            that she would work part-time as an LPN on the night shift 
 
            and continue school full time to obtain her RN and then upon 
 
            completing that course of study, she would be hired by the 
 
            defendants in an RN position.  Claimant indicated that going 
 
            on to reach her RN status would also benefit defendant 
 
            employer because so many of the registered nurses leave the 
 
            state after obtaining their education and in this case the 
 
            defendants would have another RN on the staff.
 
            
 
                 Claimant testified that on August 21 1987, after 
 
            midnight, she was on duty and was alerted by a resident 
 
            having chest pains.  Claimant went to the nurses station and 
 
            slipped on the floor and landed on her right buttock and 
 
            felt severe pain down the right leg.  Her condition became 
 
            worse.  Claimant was restricted from work on November 2, 
 
            1987, and on January 8, 1988, she had a partial 
 
            hemilaminectomy at the L5-S1 level and was discharged from 
 
            St. Mary's Hospital on January 14, 1988.
 
            
 
                 Claimant said she was released in April 1988 with a 20 
 
            pound weight limit restriction but was not able to return to 
 
            the particular job and shift she previously had and had to 
 
            work a different shift period.
 
            
 
                 Claimant corrected joint exhibit 5, page 2, in which it 
 
            indicated she returned to full-time work with defendant 
 
            employer in April 1988.  She said that is incorrect and that 
 
            she only returned part-time at that time but in the fall of 
 
            1989, she was then able to get full-time work.
 
            
 
                 Claimant testified that in mid-November 1987, she had 
 
            to withdraw from two classes at Northeast Iowa Institute 
 
            where she was working toward her RN due to her back and the 
 
            required daily physical therapy treatments.  She indicated 
 
            that her treatments involved approximately two and one-half 
 
            to three hours a day.
 
            
 
                 Claimant testified she tried to return to school to 
 
            continue her RN nursing courses when she was released in 
 
            April 1988, and defendant employer okayed her attempt.  
 
            Later, claimant said that defendants changed their position 
 
            and claimant was referred to joint exhibit 8 in which the 
 
            Northeast Iowa Technical Institute indicated that because of 
 
            claimant's 20 pound weight restriction that was for an 
 
            indefinite period and because placing claimant in a clinical 
 
            area may be expected to go beyond the weight restriction, 
 
            she was told that she could not register for any nursing 
 
            courses with a clinical component while that weight 
 
            restriction is in effect.  That same exhibit suggested that 
 
            claimant might think about enrolling in a medical records 
 
            program and think about altering her career goals to pursue 
 
            some area that would not require lifting.  Claimant related 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that at that time in April 1988, she had completed 
 
            three-fourths of her courses toward obtaining an RN and had 
 
            one quarter to be able to reach her goal.  Claimant said she 
 
            called several other colleges to try to get in and all of 
 
            the other places couldn't accept her due to the weight 
 
            restriction so claimant has been unable to complete her 
 
            registered nurse degree.
 
            
 
                 Claimant emphasized that her plan had been to obtain 
 
            her RN and work in that position and then she could go 
 
            anywhere to get a bachelor of science in nursing or a job 
 
            higher up such as director of nursing.  She emphasized there 
 
            are a lot of advantages in being a registered nurse and she 
 
            could then rise up through the nursing system.
 
            
 
                 Claimant testified that the forms she fills out for a 
 
            job application asked the question as to any disability.  
 
            She is limited to drawing blood only four times per day 
 
            because it requires her to be in a bent over position and 
 
            she related it takes a certain number of people to hold onto 
 
            someone or to lift them and that since claimant is 
 
            restricted to weight, she indicated she is also restricted 
 
            to work the night shift in which there is apparently less 
 
            physical work required.  Claimant said that during the past 
 
            several months defendant company has made changes in 
 
            operations under OBRA and is now a skilled facility whereas 
 
            before it was an intermediate or residential care facility.
 
            
 
                 Claimant testified that her job description has changed 
 
            since the injury and that joint exhibit 11 encompassing four 
 
            pages is her new job description.  Item No. 8 on page 4 of 
 
            said exhibit reflects that a person must be able to lift, 
 
            push, pull and move a minimum of 50 pounds, and item No. 9 
 
            indicates one must be able to assist in the evacuation of 
 
            residents.
 
            
 
                 Claimant related activities she used to be able to do 
 
            which she cannot do now or is limited to doing.  These 
 
            activities involve bicycle riding which can no longer do, 
 
            she cannot ride on RAGBRAI, ski or play tennis.  It also 
 
            hurts her back riding in her automobile.  Claimant said she 
 
            spends over $100 annually on over-the-counter 
 
            non-prescription drugs such as Darvocet and Motrin.
 
            
 
                 Claimant testified that in January 1987, when she began 
 
            working for defendant employer, she was earning under $6 and 
 
            in 1985 until January 1987, she was not working at any job 
 
            but was a full-time student.  She indicated that twelve 
 
            months prior to her injury involved only income from 
 
            defendant employer.  Defendants' exhibit 6, pages 1 and 2, 
 
            reflect her income during that period.  Claimant said she 
 
            was working as a part-time LPN during this time but now is 
 
            full time 40 hours per week as an LPN.  She now makes with 
 
            her raises $11.81 per hour and as before is still paid on an 
 
            hourly basis biweekly.
 
            
 
                 Claimant said she has asked the nurses not to schedule 
 
            her for more than four people from whom she draws blood.  
 
            She acknowledged that no doctor has issued that restriction.  
 
            Claimant indicated that the day shift requires more physical 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            work than the night shift and that when she returned to work 
 
            during the day shift which she worked until April 1991, she 
 
            applied for the night shift which is 11:00 p.m. to 7:00 a.m. 
 
            when it came open.  Claimant acknowledged that she didn't 
 
            violate her restrictions when she worked the other shifts.  
 
            She said there is no prohibition for her working the other 
 
            shifts.  She also said that when she worked the other 
 
            shifts, she wasn't asked to violate her restrictions.
 
            
 
                 Claimant indicated that joint exhibit 10, pages 1 
 
            through 10, are the applications that she had apparently 
 
            picked up in 1988 or 1989.  She said she didn't fill out the 
 
            applications and that she did not look for work anywhere 
 
            else.   Claimant testified she cannot apply anywhere else 
 
            because of her weight restrictions.  It is obvious to the 
 
            undersigned that these applications are forms that were 
 
            proper before the passage of  Americans With Disabilities 
 
            Act.  It also appears to the undersigned that the claimant 
 
            is not aware of the change in the law when she testified 
 
            that she couldn't apply anywhere else now because of her 
 
            work restrictions.  Claimant is not aware that the forms 
 
            referred to in exhibit 10 are not proper now and that when 
 
            applying for a job she need not state or offer nor is she 
 
            legally allowed to be asked on any form or any personal 
 
            question about any disability she had prior to a job being 
 
            offered, assuming the place of employment is covered. 
 
            Obviously, since claimant has not looked for work anywhere 
 
            else since she returned to defendant employer, she hasn't 
 
            likewise been turned down for any jobs but she indicated she 
 
            has been passed over for certain jobs because she is not a 
 
            registered nurse.
 
            
 
                 Claimant was again asked questions regarding the 
 
            various shifts and the apparent change in the nature of the 
 
            shifts and the physical requirements since defendant 
 
            employer has been classified as a skilled care facility and 
 
            because of passage of new laws.  At the time of claimant's 
 
            injury, claimant indicated the day shift was the less 
 
            strenuous than the 10:00 a.m. to 3:00 p.m. shift or the 
 
            night shift 10:00 to 7:00.  Apparently because of the new 
 
            laws whereby patients are not to be disturbed in the middle 
 
            of the night the night shift has become the less physical 
 
            shift and claimant has now voluntarily switched to the night 
 
            shift because of it being less physical.  Claimant indicated 
 
            she had been doing okay during the day shift before she 
 
            switched.
 
            
 
                 It appears the testimony is confusing at times as far 
 
            as the particular shifts and whether they overlap in part.  
 
            It appears at least now that the three shifts are 10:00 p.m. 
 
            to 6:00 a.m., 6:00 a.m. to 2:00 p.m., and 2:00 p.m. to 10:00 
 
            p.m., the first two shifts being the more physical.  It 
 
            appears from prior testimony there are periods that the 
 
            shifts referred to as 11:00 p.m. to 7:00 a.m., 7:00 a.m. to 
 
            3:00 p.m., and 3:00 p.m. to 11:00 p.m.
 
            
 
                 Scott E. Streator, DVS, a vocational consultant, 
 
            testified in person.  His report is identified as joint 
 
            exhibit 4.  Claimant went over some of his background, the 
 
            nature of his work, and the extent to which he testifies in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            various cases.  He related claimant's history taken from 
 
            claimant when he met her for the first time in March of 
 
            1989.  He went over the various criteria, documents, 
 
            formula, records and sources in which he reviewed or 
 
            gathered information and analyzed in putting together his 
 
            report and ultimate opinion.  Some of the things he 
 
            emphasized were items affecting claimant's limitations, 
 
            access to the job market, or limitations to reaching a 
 
            registered nurse position, or claimant's 20 pound weight 
 
            restriction; the fact that because of the weight 
 
            restriction, she cannot reach or finish her desire to become 
 
            a registered nurse but would be limited to her current LPN 
 
            position; and, the fact that not being a registered nurse 
 
            substantially eliminates the access to other positions which 
 
            would be open to an RN.  He indicated that the 20 pound 
 
            weight limitation under the DOT standards would put claimant 
 
            in a light weight work classification (Joint Exhibit 4, pp. 
 
            6 and 7).  He testified as to the fact that the weight 
 
            restriction prevents claimant from being a registered nurse.  
 
            Mr. Streator was asked on cross-examination the fact that 
 
            even though claimant was not to lift in excess of 20 pounds, 
 
            a doctor didn't say this was light work.  Mr. Streator 
 
            indicated that LPN work is not light duty work but to his 
 
            knowledge claimant isn't working in a total LPN situation 
 
            due to the accomodation of the employer. He also emphasized 
 
            that he isn't contending that claimant's current job is a 
 
            makeshift job but is an accommodating job, in other words, a 
 
            job in which claimant is being accommodated because of her 
 
            restrictions.
 
            
 
                 Consuelo Isella Sperry, mother of claimant, testified 
 
            as a rebuttal witness pursuant to the undersigned having 
 
            allowed a professional statement made by the defendants' 
 
            attorney.  Ms. Sperry testified that she is a registered 
 
            nurse working for the State of Iowa, and has worked as a 
 
            registered nurse at the State Mental Hospital in 
 
            Independence.  She testified her hourly wage is $18.30 per 
 
            hour and she is not a supervisor.  She acknowledged that the 
 
            average earnings of a nurse depends on the experience, where 
 
            you go and how bad they need you.
 
            
 
                 Page 6 of joint exhibit 1 is a letter from Charles C. 
 
            Van Norman, M.D., in which he mentioned in his June 7, 1990 
 
            letter that claimant has an ongoing lifting restriction of 
 
            20 pounds since her surgery in 1988, and continues to have 
 
            symptoms and he has recommended limiting her workday to 
 
            eight hours.  He indicated he thought 12 hours would be 
 
            excessive for her to be on her feet with her continuing 
 
            symptoms.  The undersigned might note that there is no other 
 
            medical record that changes or eliminates that restriction 
 
            and the evidence shows that those restrictions are currently 
 
            still in existence.
 
            
 
                 Joint exhibit 2, pages 1 through 11, are claimant's 
 
            records from the Winneshiek County Memorial Hospital.  Joint 
 
            exhibit 3 is the Mayo Clinic records consisting of 20 pages.  
 
            Joint exhibit 3, pages 18 and 19, are Mayo Clinic records 
 
            indicating claimant had a partial hemilaminectory at L5-6 
 
            and a ligament was removed.  An extruded disc fragment was 
 
            found and removed on January 8, 1988, and on April 6, 1988, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            William J. Litchy, M.D., gave claimant a 20 pound indefinite 
 
            lifting restriction and indicated she may return to work.
 
            
 
                 Joint exhibit 3, page 20, is a July 20, 1988 letter 
 
            from Dr. Litchy in which he believed claimant most likely 
 
            reached maximum medical benefits, continues to still have 
 
            pain but no neurological deficit and he opined claimant had 
 
            a 11 percent permanent partial disability.  The undersigned 
 
            believes the doctor means impairment.
 
            
 
                 Mr. Streator went into great detail in his 61 pages as 
 
            far as trying to determine claimant's industrial disability.  
 
            On joint exhibit 4, page 11, he opined that claimant had a 
 
            total industrial disability of 49 percent on the average.  
 
            The determination of industrial disability is an evaluation 
 
            and not a calculation.  It appears that Mr. Streator went 
 
            into great depth as to considerable calculations and 
 
            computations and also did some evaluation.  It is the 
 
            prerogative of the undersigned to determine industrial 
 
            disability in this case and not that of an expert vocational 
 
            consultant.  The undersigned also understands where Mr. 
 
            Streator is coming from as far as his analysis and 
 
            oftentimes lay people or lay experts use similar terminology 
 
            that in fact means something different depending on the 
 
            particular law of the state.  Without question, Mr. 
 
            Streator's report indicates claimant has a substantial loss 
 
            of income, access to the job market and limitation of 
 
            potential because she has not been able to reach the 
 
            registered nurse status because of her restrictions.  
 
            
 
                 Joint exhibit 5 is a report from the Karr 
 
            Rehabilitation Services, an organization, it appears from 
 
            the record, hired by defendants.  This January 29, 1993 
 
            report reflects that claimant still had a permanent 20 pound 
 
            weight lifting restriction.  Claimant was working full time 
 
            with defendant employer at $11.36 per hour.  This report 
 
            confirmed various other parts of claimant's testimony or 
 
            other evidence in this case.
 
            
 
                 Joint exhibit 6, page 1, reflects claimant's weekly 
 
            earnings.  Claimant had testified that November 17, 1987 is 
 
            not the last day she worked but that she was in fact 
 
            restricted from work on November 2, 1987, and that the 
 
            actual end of the pay period is two weeks later than the 
 
            last day of work for the particular period being paid.
 
            
 
                 The parties are disputing the rate to be used in this 
 
            case.  Claimant contends that the rate should be $154.66 
 
            based on the contention that claimant is a full-time 
 
            employee and therefore the rate should be under the 
 
            provisions of Iowa Code section 85.36(10).  Claimant further 
 
            contends that if the undersigned finds claimant is a 
 
            part-time worker, then the rate should be figured under the 
 
            provisions of 85.36(2).  At the beginning of this hearing 
 
            when the issues and stipulations were trying to be 
 
            summarized and put in final form, the defendants indicated 
 
            they didn't think rate was in dispute and they had 
 
            stipulated that they paid some previous benefits at a $96.62 
 
            rate. It then became apparent that the rate is in fact in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            dispute.  The defendants contend that any rate should be 
 
            figured on the basis of claimant being part-time and under 
 
            the provisions of 85.36(10), and therefore the defendants 
 
            contend the rate would be $72.94, and have overpaid any 
 
            benefits they previously paid.  The undersigned is not sure 
 
            where the claimant is coming from as to her contention that 
 
            she is a full-time employ as the claimant's own testimony 
 
            and the other evidence and records in this case, including 
 
            joint exhibit 6, page 1, shows claimant was in fact a 
 
            part-time worker.  In no case did she work more than 32 
 
            hours a week and that was only once and basically her hours 
 
            ran from a high of 28 down to 16 hours per week.  The 
 
            undersigned finds that claimant is in fact a part-time 
 
            worker paid by the hour and received her earnings biweekly.
 
            
 
                 Claimant's injury was on August 21, 1987.  In looking 
 
            at joint exhibit 6, claimant's actual day she was injured 
 
            fell in between the pay period covered by the entry at No. 
 
            16 for August 29, 1987.  There is no dispute that claimant 
 
            was paid on an hourly basis.  The undersigned believes the 
 
            computation should be under 85.36(6).  The undersigned 
 
            therefore is taking the 13 weeks prior to August 21, 1987, 
 
            which amounts to claimant having gross wages of $142.30 
 
            based on those 13 as determined by adding the income of 
 
            those 13 weeks and dividing by 13.  Claimant being married 
 
            and having one dependent child on the date of her injury 
 
            results in a rate of $103.38.
 
            
 
                 Joint exhibit 12, page 1, is a letter to the claimant 
 
            from defendants' insurance adjuster.  This letter reflects 
 
            that defendants were sending some weekly benefits for 
 
            permanent partial disability benefits to the claimant on 
 
            December 23, 1988.  They were basing their payments on the 
 
            11 percent permanent partial disability to the body as a 
 
            whole that was opined by Dr. Litchy.  The undersigned 
 
            interprets Dr. Litchy's use of the word or at least this 
 
            letter's use of the word "disability" as meaning impairment.  
 
            This letter therefore reflects that the insurance carrier 
 
            feels that 11 percent of 55 weeks of permanent partial 
 
            disability benefits is all that they owe.  In that same 
 
            letter they refer to the fact that if the claimant disagrees 
 
            or disputes the information in the letter, they may petition 
 
            for a review-reopening.  Joint exhibit 12, pages 2 and 3, is 
 
            claimant's attorneys response to the insurance carrier's 
 
            letter in which they disagree not only with the 11 percent 
 
            determination as being the extent of claimant's industrial 
 
            disability and disagreeing that the impairment would be the 
 
            same as the industrial disability, but also because there 
 
            was no interest included for the late payment for the 37 
 
            weeks they were paying in this December 1988 letter and, 
 
            also, that claimant was going for further medical.  
 
            Claimant's attorney further indicates that they were going 
 
            to hold the checks and that they haven't been cashed.
 
            
 
                 The above sequence of events is what leads up to the 
 
            other issue to be decided in this case as to whether there 
 
            was a settlement proposed or inferred by the defendants in 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            sending a lump sum check to the claimant and then mentioning 
 
            that the additional balance of the 11 percent will be paid 
 
            in monthly installments as the weeks accrue.  Also, the 
 
            letter mentioned that if they disputed this, they may submit 
 
            a petition for review-reopening.  The undersigned believes 
 
            that that terminology is misleading in that since there was 
 
            no arbitration decision or settlement signed by the parties 
 
            and approved, claimant still had arbitration rights and that 
 
            a review-reopening petition was not the remedy available if 
 
            claimant disagreed with the defendants' position.  This 
 
            terminology may have misled the claimant to believe that it 
 
            was a settlement and that anything further to change it if 
 
            they disagreed would have to be done by a petition for 
 
            review-reopening.  There is no evidence that these checks 
 
            had any notation thereon that they were in full settlement 
 
            or is there any evidence of a letter specially indicating a 
 
            settlement in full based on the 11 percent.  The undersigned 
 
            therefore believes that any inference claimant may have 
 
            received from that letter is not valid in that claimant 
 
            could have easily rectified any misinterpretation by 
 
            follow-up letters clarifying the situation.  The undersigned 
 
            believes that if the checks referred to in this case were 
 
            cashed, claimant would not have been held to a settlement of 
 
            11 percent industrial disability.  The undersigned 
 
            conclusion is further substantiated based on page 5 of joint 
 
            exhibit 12 in which the claimant's attorney at the time 
 
            acknowledged that they had received as of July 5, 1989, 55 
 
            weeks of benefits and they felt they were entitled to an 
 
            additional 190 weeks and further stated that if they 
 
            received those additional weeks which would be based on a 49 
 
            percent industrial disability, they would consider it a lump 
 
            sum settlement.
 
            
 
                 As of the date of the hearing, there is no dispute that 
 
            claimant through her attorney has received 55 weeks of 
 
            permanent partial disability benefits paid at $96.62 per 
 
            week amounting to $5,314.10, representing 11 percent 
 
            industrial disability.  The undersigned, based on the record 
 
            herein, does not understand why the claimant did not cash 
 
            those checks and if there was any doubt in their mind as to 
 
            whether that was payment in full, they could have easily 
 
            nailed it down through further clarifying letters.  The 
 
            undersigned feels it is up to the claimant to resolve any 
 
            doubt or they should have returned the checks to the 
 
            defendants.  The undersigned finds that the $5,314.10 that 
 
            was sent to claimant through her attorney are benefits upon 
 
            which there is no interest due and the undersigned considers 
 
            the claimant having received that sum for which defendants 
 
            will be given credit.  Therefore, any additional permanent 
 
            partial disability benefits awarded herein will begin on 
 
            April 29, 1989.  The parties have stipulated that any 
 
            industrial disability benefits would begin on April 9, 1988.  
 
            Defendants do owe interest as provided by law for those 
 
            payments as they accrued up until the $3,574.94 check was 
 
            paid on December 23, 1988 as per joint exhibit 12, page 1.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            That exhibit also reflects that the other remaining 18 weeks 
 
            of the 55 weeks will be paid every 30 days.  Defendants also 
 
            owe any interest on those amounts that will be owed due to 
 
            the fact that the defendants were paying them at 
 
            approximately four weeks or thirty days intervals rather 
 
            than each week.  Although the undersigned finds that the 
 
            defendants are therefore to be given credit for the 
 
            $5,314.10, it would also appear that the checks are possibly 
 
            at a status that they must be reissued or possibly a bank 
 
            but not honor them because of the date thereon because the 
 
            claimant has been holding the same.  Therefore, it is 
 
            understood by the undersigned that that even though credit 
 
            is being given, if the checks must be reissued, the 
 
            defendants shall forthwith reissue them within one week of 
 
            this decision and if not done by said defendants interest 
 
            shall run on said sum from said date.  Likewise, within that 
 
            one week period, claimant shall return to the defendants the 
 
            checks that have previously been issued.  This, again, is 
 
            assuming that said checks that have been already issued are 
 
            no longer negotiable.
 
            
 
                 The remaining issue to be resolved is the extent of 
 
            claimant's permanent disability.  Defendants contend that it 
 
            is 11 percent which is the percent of impairment opined by 
 
            Dr. Litchy, herein.
 
            
 
                 It would appear that the defendants are using the 
 
            criteria that 11 percent impairment to the body as a whole 
 
            is the same as one's industrial disability.  Although 
 
            industrial disability could end up the same as one's 
 
            impairment, or could be less or more, the facts in this case 
 
            make it grossly unreasonable to assume that claimant, with a 
 
            severe restriction of not lifting more than 20 pounds and 
 
            who has an 11 percent impairment, would have only an 11 
 
            percent industrial disability.  By any norm, a person with a 
 
            20 pound limitation would put them in a light duty category.
 
            
 
                 Claimant is an LPN.  It is undisputed that she was well 
 
            on her way to becoming a registered nurse which is a highly 
 
            sought after and desirable position for one to have.  
 
            Claimant was one quarter away from becoming a registered 
 
            nurse and there was no reason in the record to show that she 
 
            would not have been able to attain it if it were not for her 
 
            August 21, 1987 work injury.  Claimant's current job 
 
            description provides that claimant must be able to lift, 
 
            push, pull and move a minimum of 50 pounds.  This does not 
 
            seem to be an unreasonable weight for an LPN in that a nurse 
 
            is required to move and lift patients as a part of their 
 
            duty.  Defendants argue that claimant has been working for 
 
            defendant employer with her 20 pound limit and has been 
 
            getting along and that notwithstanding this 50 pound limit, 
 
            this is not currently an obstacle.  It is true claimant 
 
            likes her job but the fact is claimant has a severe 
 
            restriction in which she is not to lift more than 20 pounds.  
 
            There is also evidence in the record that she should not 
 
            work more than eight hours on a shift.
 
            
 
                 The defendant employer is accommodating claimant.  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Joint exhibit 8, page 1, is a letter from the North Iowa 
 
            Institute dated April 25, 1988, which specifically states 
 
            that claimant's 20 pound restriction prevents her from 
 
            registering her for nursing courses with a clinical 
 
            component while the weight restriction is in effect.  
 
            Claimant testified that she tried other places to continue 
 
            her RN education and received the same response.  The 
 
            evidence shows the weight restriction is permanent and the 
 
            evidence shows that because of claimant's injury, she is 
 
            unable to be a registered nurse.  Without question, a 
 
            registered nurse is a much more desirable position than an 
 
            LPN and opens substantially more avenues and rights to a 
 
            promotion or jobs than an LPN.  Joint exhibit 8 also refers 
 
            to the fact that claimant could start the medical records 
 
            program at the North Iowa Institute because of her medical 
 
            condition and, therefore, suggested she may want to alter 
 
            her career goals.  How demeaning this would be for the 
 
            claimant who is an LPN having to change her career and think 
 
            about being a medical records clerk.  To the undersigned it 
 
            would be similar to a professional such as a lawyer who 
 
            could no longer practice law for whatever reason to become a 
 
            law clerk.  Claimant is now making $11.81 per hour.  There 
 
            is no dispute she is on an hourly basis but gets paid every 
 
            two weeks.  Claimant's mother is a registered nurse and is 
 
            making $18.30 per hour and is not in a supervisory position 
 
            and works for the State of Iowa at a mental health 
 
            institution.  On cross-examination, claimant's attorney 
 
            seemed to indicate or possibly infer that between the State 
 
            of Iowa and private industry there is no wage comparison 
 
            implied the state pays more.  The undersigned using the 
 
            agency expertise and common knowledge would agree in many 
 
            instances that the comparison might not be logic but that 
 
            private industry often pays substantially more than 
 
            government jobs.  Claimant had no prior injuries that would 
 
            affect claimant or is affecting claimant and that the only 
 
            injury from which claimant suffers a permanent impairment 
 
            and a loss of earning capacity is her August 21, 1987 
 
            injury.
 
            
 
                 Considering claimant's pre and post-injury medical and 
 
            work history, present condition, work experience, education, 
 
            current physical condition, impairment, restrictions, 
 
            location of her injury, surgery, severity of her injury, any 
 
            healing period, age, motivation, and the fact that 
 
            defendants are accommodating the claimant, the undersigned 
 
            finds that claimant has a substantial loss of earning 
 
            capacity.  There is no evidence the weight restrictions or 
 
            requirements of a licensed practical nurse or registered 
 
            nurse would be any different than the weight restrictions 
 
            established at defendant employer.  Claimant is basically, 
 
            because of her weight restriction, held hostage as far as a 
 
            future job as a nurse because it would appear any attempt to 
 
            seek employment elsewhere as an LPN would ultimately result 
 
            in claimant being severely affected or hampered by her 
 
            weight restriction.  This is true notwithstanding the fact 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            that she can no longer even be a registered nurse who even 
 
            with the same restrictions would be more qualified and more 
 
            sought after with that additional expertise, education and 
 
            degree.  Taking claimant's current status, the undersigned 
 
            finds that claimant has a 40 percent industrial disability 
 
            and that benefits shall be paid at the rate of $103.38 per 
 
            week and payment shall begin April 29, 1989, after allowing 
 
            55 weeks of credit as provided herein.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 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 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Iowa Code section 85.36(6) provides:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                    ....
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 It is further concluded that claimant incurred an 
 
            injury on August 21, 1987 that arose out of and in the 
 
            course of her employment and that said work caused claimant 
 
            to incur surgery to her L5-6 vertebra and caused claimant to 
 
            incur a 40 percent industrial disability.
 
            
 
                 It is further concluded that claimant's weekly benefits 
 
            is payable at the rate of $103.38 based on the provisions of 
 
            85.36(6) and that claimant was paid on an hourly basis with 
 
            pay periods being every two weeks.
 
            
 
                 Defendants should be given credit for the $5,314.10 
 
            that has been paid by the defendants, representing 55 weeks 
 
            paid at the rate of $96.62 per week, but that since claimant 
 
            has received the money and hadn't cashed the checks there 
 
            should be no interest due on said amount during the period 
 
            of time that claimant has had said checks but did not cash 
 
            them.  Because of the period time, the checks may have to be 
 
            reissued and, if so, defendants shall reissue the same 
 
            within one week of this decision and claimant shall within 
 
            one week return the uncashed checks to the defendants, 
 
            again, assuming they are not negotiable.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            (200) weeks of permanent partial disability benefits at the 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            rate of one hundred three and 38/100 dollars ($103.38) 
 
            beginning April 9, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid five thousand three hundred fourteen and 10/100 dollars 
 
            ($5,314.10), representing fifty-five (55) weeks of permanent 
 
            partial disability at ninety-six and 62/100 dollar ($96.62).  
 
            Said checks have not been negotiated and, therefore, as 
 
            provided above in the findings, if said checks are not able 
 
            to be negotiated, defendants shall reissue checks for five 
 
            thousand three hundred fourteen and 10/100 dollars 
 
            ($5,314.10) and interest will not be due on said sum.   With 
 
            said fifty-five (55) weeks running from April 9, 1988, that 
 
            would make the additional benefits awarded herein to 
 
            actually begin on April 29, 1989.  Defendants shall pay the 
 
            difference including intetest on these fifty-five (55) weeks 
 
            between the one hundred three and 38/100 dollar ($103.38) 
 
            and the ninety-six and 62/100 dollar ($96.62) amounts.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.  This 
 
            includes any interest that would have accrued on benefits to 
 
            which claimant was entitled before the first lump sum 
 
            payment was paid in December 1988, and any interest that may 
 
            be due resulting from any delinquent payments of the 
 
            remaining eighteen (18) weekly checks that encompassed the 
 
            fifty-five (55) weeks for which claimant is being credited 
 
            as set out herein and under the provisions herein.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Dennis G Larson
 
            Attorney at Law
 
            312 W Main St
 
            Decorah IA 52101
 
            
 
            Ms Deborah A Dubik
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1703; 1803; 3002; 3800
 
                                              Filed May 4, 1993
 
                                              Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LB,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. (call for #)
 
            AASE HAUGEN HOMES, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL LOSS ADJUSTING    :
 
            SERVICES, INC.,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Awarded claimant 40% industrial disability.
 
            
 
            3002
 
            Found rate to be figured under Iowa Code section 85.36(6) at 
 
            $103.38
 
            
 
            1703; 3800
 
            Claimant received 55 weeks permanent partial disability at 
 
            the rate $96.62 but refused to cash check "believing" the 
 
            defendants felt it was a settlement in full.  Found:
 
            1.  Claimant should not have considered it settlement in 
 
            full for 11% industrial disability.
 
            2.  Defendants to be given credit for the $5,314.12 amount 
 
            and no interest is due for period claimant (claimant's 
 
            attorney) held checks uncashed.