BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORBERT DETERT,
 
                                                   File No. 871472
 
              Claimant,
 
                                                A R B I T R A T I 0 N
 
         vs.
 
                                                   D E C I S I O N
 
         CITY OF CEDAR RAPIDS,
 
                                                      F I L E D
 
              Employer,
 
              Self-Insured,                          DEC 11 1990
 
              Defendant.
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Norbert 
 
         Detert, claimant, against the City of Cedar Rapids, Iowa, a 
 
         self-insured defendant employer, for workers' compensation 
 
         benefits as a result of an alleged injury on December 16, 1987.  
 
         On August 21, 1990, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.   The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On December 16, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Cedar 
 
         Rapids.
 
         
 
              2.  Claimant's entitlement to temporary total disability or 
 
         healing period benefits extends from December 17, 1987 through 
 
         March 27, 1988 and from February 15, 1989 through May 19, 1989.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $262.27.
 
         
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendant.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  The extent of claimant's entitlement to permanent 
 
         disability benefits;
 
         
 
               II.  The extent, if any, of claimant's entitlement to 
 
         penalty benefits under Iowa Code section 86.13 for an 
 
         unreasonable denial of workers' compensation benefits; and,
 
         
 
              III.  The extent, if any, of defendant's entitlement to a 
 
         credit for payment of wages/sick leave in lieu of compensation 
 
         during claimant's healing period.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              Claimant has worked for the City of Cedar Rapids for 
 
         approximately 43 years.  He started as a laborer and has held 
 
         jobs as truck driver, can man and heavy equipment operator.  The 
 
         work injury herein occurred while claimant was performing his 
 
         heavy equipment operator job.  Claimant continues in this same 
 
         job classification for the City of Cedar Rapids at the present 
 
         time. Claimant is currently assigned to operating a street 
 
         sweeper.
 
         
 
              On December 16, 1987, claimant was assigned to plowing snow 
 
         with a road grater.  Claimant injured both of his shoulders when 
 
         the blade of the grater struck an obstruction in the roadway.  
 
         The injuries involved a tear of the rotator cuff in each shoulder 
 
         which required two separate surgeries to repair the damage.
 
         
 
              Based upon the uncontroverted views of claimant's primary 
 
         treating orthopedic surgeon, Martin Roach, M.D., claimant suffers 
 
         a 16 percent permanent partial impairment to the body as a whole 
 
         as a result of the bilateral shoulder injuries.  Dr. Roach has 
 
         permanently restricted claimant's lifting to 25 pounds and has 
 
         directed that he can no longer operate the road grater.
 
         
 
              As a result of the work injury of December 16, 1987, 
 
         claimant has suffered a 10 percent loss of earning capacity.  
 
         Despite his age of 61 years, claimant's medical condition before 
 
         the work injury was excellent and he had no functional 
 
         impairments.  He was able to fully perform physical tasks 
 
         including heavy lifting and the operation of a road grater.  
 
         However, claimant's employer has accommodated for his disability 
 
         and has returned claimant to work under the restrictions that he 
 
         can no longer be assigned to road
 
         grater work.  Claimant currently operates a street sweeper which 
 
         at times is hard for him, however, he is able to perform this job 
 
         satisfactorily according to the defendant employer.  Claimant has 
 
         suffered no loss of earnings from his inability to operate the 
 
         grater or from his disability.  Claimant testified that his 
 
         current hourly rate is higher than at the time of the work injury 
 
         and does receive the same income and overtime work as he did 
 
         before.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was paid 32.5 weeks of permanent partial disability 
 
         benefits by the defendant prior to hearing based upon the ratings 
 
         of Dr. Roach to the upper extremity rather than to the body as a 
 
         whole.  Defendant contends that they were informed by members of 
 
         the staff of this agency that such a method of payment was 
 
         correct.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 
         
 
              In the case sub judice, it was found that claimant has 
 
         suffered a 10 percent loss of earning capacity as a result of the 
 
         work injury.  Based upon such a finding, claimant is entitled as 
 
         a matter of law to 50 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 10 percent 
 
         of 500 weeks, the maximum allowable for an injury to the body as 
 
         a whole in that subsection.
 
         
 
              In this decision, it is found that claimant suffered a loss 
 
         of earning capacity despite a lack of showing of a loss of actual 
 
         earnings.  A showing that claimant had no loss of actual earnings 
 
         does not preclude a finding of industrial disability.  See 
 
         Michael v. Harrison County, Thirty-Fourth Biennial Reports, Iowa 
 
         Industrial Commissioner 218, 220 (Appeal Decision 1979).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant seeks penalty benefits under Iowa Code section 
 
         86.13 contending that defendant unreasonably denied benefits when 
 
         it incorrectly computed benefits on the basis of an impairment to 
 
         the arm rather than to the body as a whole.  Defendant contends 
 
         that they can rely upon the statements of the staff to avoid 
 
         penalty benefits.  This is incorrect.  Unless a communication is 
 
         received from this agency in the form of a specific decision, 
 
         ruling or order of the industrial commissioner, it is not binding 
 
         upon the industrial commissioner.  However, claimant is not 
 
         entitled to penalty benefits.  Claimant has been paid over 30 
 
         weeks of compensation for permanent partial disability.  It is 
 
         fairly debatable that claimant had no industrial disability or a 
 
         minimal loss of earning capacity given his age and the fact that 
 
         he is back to work performing the same job earning more money 
 
         than he did prior to the injury.  Therefore, claimant has failed 
 
         to show that he has been unreasonably denied benefits in this 
 
         case prior to hearing.
 
         
 
              Defendant contends that it is entitled to a credit on future 
 
         payments of disability benefits in an amount which represents the 
 
         difference between defendant's payment of full wages in the form 
 
         of sick leave to claimant during his healing period and 
 
         claimant's weekly entitlement to workers' compensation benefits.  
 
         However, this agency has adopted a rule which disallows such a 
 
         credit.  See Division of Industrial Services Rule 343 IAC 8.4.  
 
         Therefore, the claim for credit is denied.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         sixty-two and 27/100 dollars ($262.27) from May 20, 1989.
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for benefits 
 
         previously paid.  However, defendant may not take a credit for 
 
         the excess payments of salary in lieu of compensation.
 
         
 
              3.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343 IAC 4.33, including 
 
         reimbursement to claimant for any filing fee paid in this matter.
 
         
 
              5.  Defendant shall file the activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343 IAC 3.1.
 
         
 
         
 
              Signed and filed this 11th day of December, 1990.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Matthew J. Petrzelka
 
         Attorney at Law
 
         1200 MNB Bldg
 
         Cedar Rapids, IA  52401
 
         
 
         Mr. James H. Flitz
 
         Attorney at Law
 
         City Hall - 7th Floor
 
         Cedar Rapids, IA  52401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed December 11, 1990
 
                                            LARRY P. WALSHIRE
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORBERT DETERT,
 
                                                   File No. 871472
 
              Claimant,
 
                                                A R B I T R A T I 0 N
 
         vs.
 
                                                   D E C I S I 0 N
 
         CITY OF CEDAR RAPIDS,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1803
 
         
 
              Extent of permanent disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         NEIL CHRISTENSEN,             :
 
                                       :
 
              Claimant,                :
 
                                       :      File Nos. 871523
 
         vs.                           :                976696
 
                                       :
 
         PRINCE MANUFACTURING CO.,     :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY CO.,  :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                   introduction
 
         
 
              This is a proceeding in arbitration brought by Neil T. 
 
         Christensen, claimant, against Prince Manufacturing Co., 
 
         employer, and Aetna Insurance Company, insurance carrier, as 
 
         defendants.
 
         
 
              The record in this case consists of testimony from the 
 
         claimant, Craig Presnall and Richard Saltsgiver; claimant's 
 
         exhibits 5, 13, 27, 28, 29 and 30; and, defendants' exhibits A 
 
         through L.  The matter came on for hearing at Sioux City, Iowa, 
 
         on February 13, 1992.
 
         
 
                                 findings of fact
 
         
 
              The undersigned deputy, having reviewed all the evidence, 
 
         finds the following facts:
 
         
 
              Claimant was born on March 19, 1956.  At the time of the 
 
         hearing, he was 35 years old.
 
         
 
              Claimant received a GED in 1982, and stated that while in 
 
         high school received grades of D's and D minuses.  He has 
 
         received no further education.
 
         
 
              After leaving high school, claimant began working for Sioux 
 
         Car Park, where his job duties included parking cars and taking 
 
         change.  He earned minimum wage and worked at Sioux Car Park for 
 
         approximately six month.  Claimant then began working for Jolly 
 
         time Popcorn, employment he held for approximately six months.
 
         
 
              At that time, claimant returned to Sioux Car Park where he 
 
         worked for two years.
 
         
 
              The next three years, claimant worked for Floyd Valley Pack 
 
         as a laborer.  Claimant then went to work for the Sioux City 
 
         Hilton as a bellboy for six months.  Subsequently, claimant 
 
         worked as a cement truck driver, and at some point also worked 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         for I-GO United Van Lines.  During this employment history, 
 
         claimant had never sustained any work-related injuries.
 
         
 
              In 1987, claimant began working for the defendant employer, 
 
         Prince Manufacturing Co.  He continues to be employed in the 
 
         assembly department which consists of the following functions:  
 
         washing and stamping; packing pistons; placing pistons on rods; 
 
         inserting rods into tubes; and, testing.  Claimant stated that 
 
         physical movements required in performing these job duties 
 
         include bending over and picking up various parts.  He stated 
 
         that the parts range from one foot to twelve feet, and the tools 
 
         used to assemble and test the pistons range from six inches to 
 
         twelve feet in length.  Claimant stated that for the most part, 
 
         he stood while doing his job.  He was not assigned to an assembly 
 
         line, but rather worked in a department so that his duties varied 
 
         on a daily basis.  On almost all of the jobs, claimant was 
 
         required to perform a considerable amount of shoving, pushing, 
 
         pulling, and lifting in excess of 70 pounds.  He works primarily 
 
         at waist or table levels.  Heavier parts at the plant require the 
 
         use of a hoist, which is provided to all employees.  Claimant was 
 
         paid $10.64 per hour plus incentive pay, which was based on 
 
         output.  Claimant stated that he was always paid some form of 
 
         incentive pay, but that the amounts varied upon how quickly the 
 
         work was completed.
 
         
 
              In December of 1987, as claimant was testing hydraulic 
 
         cylinders at work, he was using two large wrenches to tighten 
 
         bolts on the cylinder.  As he was performing his duties, he felt 
 
         a sharp pain in his right shoulder, and felt something snap.
 
         
 
              He told his foreman about the incident, and was sent home.  
 
         Claimant opted to go to the hospital where he underwent x-rays.  
 
         He was told by hospital physicians not to return to work for 
 
         several days.
 
         
 
              Next, claimant received treatment from R. L. Morgan, M.D., 
 
         the company physician.  Dr. Morgan, after an examination, 
 
         diagnosed claimant as having a musculoskeletal strain of the 
 
         right arm with noted muscle spasms in the right neck.  He 
 
         recommended medication and whirlpool treatment.
 
         
 
              After several trips to Dr. Morgan, claimant was sent to Alan 
 
         Pechacek, M.D.  After an examination which showed that claimant 
 
         could elevate both shoulders, Dr. Pechacek diagnosed strained 
 
         muscles of the shoulder, and recommended that claimant continue 
 
         working with normal activities encouraged.
 
         
 
              In March of 1988, claimant returned to Dr. Pechacek with 
 
         continued pain which was concentrated in the trapezius and 
 
         supraspinatous area.  Claimant displayed difficulty with 
 
         abduction and adduction of the right shoulder.  He was given 
 
         Motrin, and it was recommended that he undertake physical therapy 
 
         (Employer's Exhibit 1).  From April through August of 1988, 
 
         claimant continued to seek medical treatment from Dr.. Pechacek.  
 
         On several occasions, he underwent cortisone injections in the 
 
         shoulder joint, and was given a prescription for Anaprox.
 
         
 
              In September of 1988, claimant was admitted to Marion Health 
 
         Center and underwent surgery for the removal of the distal 
 
         clavicle and a resection of the AC joint (Def. Ex. A-1).
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              Claimant returned to work in November of 1988, approximately 
 
         six weeks after the surgery.  Dr. Pechacek noted normal range of 
 
         motion in the neck and shoulder, but with muscle soreness and 
 
         tightness.  Claimant was to return to work with restrictions of 
 
         no lifting of more than 45 pounds (Def. Ex. A-1).
 
         
 
              In December of 1988, Dr. Pechacek noted that claimant was 
 
         back to work on light duty.  An examination revealed minimal 
 
         tenderness in the operative area as well as tenderness in the 
 
         right cervical area into the trapezius.  On a follow-up visit in 
 
         January of 1989, it was recommended that claimant continue to use 
 
         his shoulder and arm as much as possible, and to continue working 
 
         with a weight restriction of no lifting of more than 45 pounds 
 
         (Def. Ex. A-1).
 
         
 
              From February of 1989 through November of 1989, claimant 
 
         continued to treat with Dr. Pechacek.  The medical records 
 
         indicate that although claimant complained of some discomfort and 
 
         pain, his shoulder movements were within normal range of motion.  
 
         Claimant had been continuing to work his regular job (Def. Ex. A-
 
         1).
 
         
 
              Claimant returned to Dr. Pechacek in May of 1990 and 
 
         complained of ongoing pain in the right neck, shoulder and arm.  
 
         Claimant also stated that he had numbness and tingling in two 
 
         fingers of the right hand.  He also complained of shoulder 
 
         clicking and popping, and stated that work activities involving 
 
         pushing or pulling with the arm or above shoulder level increased 
 
         the pain.  Upon examination, claimant displayed normal range of 
 
         motion in the neck and complained of pain upon certain movements 
 
         of the right shoulder.  Although claimant was referred to James 
 
         Case, M.D., for an EMG and nerve conduction studies, Dr. Case 
 
         declined to see claimant due to the litigated status of the case 
 
         (Def. Ex. A-1; A-5).
 
         
 
              These tests were then conducted by Leonel Herrera, M.D., and 
 
         were reported to be normal.  In October of 1990, claimant again 
 
         underwent cortisone injections to the shoulder (Def. Ex. A-1).
 
         
 
              Claimant continued to treat with Dr. Pechacek through 
 
         December of 1990, with basically the same complaints of pain and 
 
         tenderness in the shoulder joint area.  However, claimant was 
 
         able to continue working without any restrictions (Jt. Ex. A-1).
 
         
 
              In February of 1991, claimant returned to Dr. Pechacek whose 
 
         notes state:  "patient returns [early] today because of problems 
 
         resulting from work earlier today."  Dr. Pechacek indicated that 
 
         claimant had aggravated his previous problem due to heavy 
 
         lifting, carrying and pushing activities required of his job.  
 
         Claimant was taken off of work, and it was recommended that he 
 
         rest his shoulder and arm.  Claimant saw Dr. Pechacek through 
 
         March of 1991, and the final recommendation was to release 
 
         claimant to return to work on March 8, 1991 with medical 
 
         restrictions of no lifting of more than 50 pounds, and no lifting 
 
         of anything longer than 48 inches.  Claimant was not to work with 
 
         his arm at or above shoulder level (Def. Ex. A-1).
 
         
 
              In April of 1991, Dr. Pechacek assessed claimant's 
 
         condition:
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              As of the moment, the fifty pound lifting restriction 
 
              is temporary, but unless he improves significantly, it 
 
              may become permanent.
 
         
 
                 As it regards a permanent impairment, to a large 
 
              extent, he has a normal range of motion of his 
 
              shoulder.  Based on the AMA Guides to the Evaluation of 
 
              Permanent Impairment, Third Edition, this would not 
 
              allow for any permanent impairment.  However, 
 
              impairment does not necessarily correlate with 
 
              disability, which is a functional determination.  He 
 
              may have some ongoing permanent disability, even though 
 
              he may not have any permanent impairment.  It may be 
 
              necessary to get a Functional Capacity Evaluation done 
 
              on Mr. Christensen, particularly if he fails to improve 
 
              further with time.  Such a determination would be 
 
              helpful in determining his disability and any permanent 
 
              work restrictions that he might have.
 
         
 
         (Def. Ex. A-1)
 
         
 
              Claimant underwent a work evaluation assessment at the 
 
         Marion Health Center in April 1991.  He underwent testing in the 
 
         following areas:  lifting; pushing and pulling; reaching; 
 
         manipulation and handling; grip strength; pinch strength; 
 
         endurance and stamina; and a work sample performance.  The 
 
         overall assessment included the following information:
 
         
 
              Observed Effort:  Lifting performance on the BTE Work 
 
              Simulator and dynamically using Valpar 19 were not 
 
              consistent and indicate full effort was not given 
 
              during the lifting performance.  Use of accessory 
 
              muscles were not noted throughout other testing 
 
              procedures suggesting full effort was not given.  Mr. 
 
              Christensen's effort was difficult to assess as he was 
 
              always making a joke out of what the therapist would 
 
              say....
 
         
 
                 ....
 
         
 
              Summary and Recommendations:  Mr. Christensen is a 35 
 
              yr. old, (R) handed male with a diagnosis of (R) 
 
              shoulder girdle pain per Dr. Pechacek.  He currently 
 
              works at Prince Manufacturing Co. assembling hydraulic 
 
              cylinders.  Based on the results of this evaluation, it 
 
              is recommended that Mr. Christensen avoid lifting over 
 
              30#'s as he reported an increase in symptoms, 
 
              especially when lifting above eye level.  Pushing and 
 
              pulling should be performed at a maximum level of 20# 
 
              with his (R) arm and 50#'s with his (L) arm.  Reaching 
 
              and working overhead should also be kept to a minimum 
 
              if he is required to use his (R) arm as this increased 
 
              his symptoms, however he did compensate well with his 
 
              (L) arm.  He had difficulty performing a repetitive 
 
              task requiring use of both arms so repetitive task 
 
              performance should also be kept to a minimum.
 
         
 
         (Def. Ex. A-1)
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              Claimant also underwent an independent medical evaluation 
 
         performed by Patrick Luse, D.C.  Dr. Luse assessed claimant as 
 
         having a 10 percent functional impairment to the whole person as 
 
         a result of objective findings found during the examination (Cl. 
 
         Ex. 27, p. 6).
 
         
 
                         analysis and conclusions of law
 
         
 
              The first issue to be addressed is whether claimant 
 
         sustained injuries on December 8, 1987 (File No. 871523), and 
 
         February 7, 1991 (File No. 976696).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on December 8, 1987 and 
 
         February 7, 1991, which arose out of and in the course of his 
 
         employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
         1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967). 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128. 
 
         
 
              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).
 
         
 
              It is uncontroverted that claimant was performing his 
 
         regular job duties at the plant in the manner appropriate to 
 
         complete his assigned duties.  The evidence confirms that 
 
         claimant timely reported the work injury to his supervisor.
 
         
 
              Defendants raise no argument which would lead one to believe 
 
         that claimant was injured anywhere else but on the job in 
 
         December of 1987.  There is no evidence that claimant had ever 
 
         suffered right shoulder pain in the past, and the medical 
 
         histories taken by the providers indicate that claimant was 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         consistent in telling both his employer and treating physicians 
 
         about the work accident in December of 1987.
 
         
 
              The focus appears to be on the injury date of February 7, 
 
         1991.  Specifically, the question appears to be whether claimant 
 
         sustained a new injury on this date, or if he aggravated his 
 
         condition.  Either way, since claimant was working for the same 
 
         employer, the employer pays for any resulting medical treatment 
 
         received, and depending upon a finding of permanency, the result 
 
         of the disability due to the February 1991 incident.
 
         
 
              The evidence submitted shows that claimant had received 
 
         ongoing medical treatment since the 1987 accident.  In fact, when 
 
         claimant returned in February of 1991 and indicated that he had 
 
         reinjured his shoulder while performing his regular job duties, 
 
         claimant was still under the treatment of Dr. Pechacek.  Dr. 
 
         Pechacek addressed this issue in a letter to claimant's attorney 
 
         dated March 18, 1991:
 
         
 
                 I believe that it is too soon to make a 
 
              determination of his impairment, as he is still 
 
              recovering from an episode of reaggravation of his 
 
              shoulder and arm problems.  Once he has recovered and 
 
              stabilized then it would be appropriate to make this 
 
              determination.
 
         
 
                 So far as I can determine Mr. Christensen's ongoing 
 
              problems do relate back to his injury of December 8, 
 
              1987.
 
         
 
         (Def. Ex. A-1)
 
         
 
              As a result, it is determined that claimant did sustain an 
 
         injury on December 8, 1987 which arose out of and in the course 
 
         of his employment.  Claimant did not sustain a separate and 
 
         distinct injury on February 7, 1991.  Agency File No. 976696 is 
 
         dismissed.
 
         
 
              The next issue to be addressed is whether there is a causal 
 
         relationship between claimant's injury of December 8, 1987 and 
 
         his disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 8, 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 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 
 
         354 (Iowa 1980).
 
         
 
              As stated by Dr. Pechacek in March of 1991, claimant's 
 
         ongoing problems are related to the injury of December 8, 1987.  
 
         Dr. Pechacek has treated claimant throughout the healing process, 
 
         and can be labeled as claimant's treating physician.  Likewise, 
 
         Dr. Pechacek's overall assessment of claimant's condition and 
 
         disability revolves around his work restrictions of no lifting of 
 
         greater than 50 pounds and no lifting of objects longer than 48 
 
         inches.
 
         
 
              And, an independent evaluation performed by Dr. Luse also 
 
         states that there is a causal relationship between claimant's 
 
         injury in December of 1987 and a functional impairment of 10 
 
         percent.
 
         
 
              Therefore, it is found that claimant's disability is related 
 
         to the December 8, 1987 work injury.
 
         
 
              The next issue to be addressed is claimant's industrial 
 
         disability.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         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 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, l985).
 
         
 
              At the time of the hearing, claimant was 35 years old.  His 
 
         most stable work history has been with the defendant Prince 
 
         Manufacturing Company, and claimant has continued to be employed 
 
         with the company.  In fact, claimant continues to do the same job 
 
         he was performing at the time of the injury.  Although the 
 
         restrictions imposed impact claimant's ability to perform several 
 
         of the duties which are required of him, the company has 
 
         accommodated these difficulties.
 
         
 
              Claimant sought extensive treatment from Dr. Pechacek for 
 
         the injury.  However, most of the visits indicated that claimant 
 
         was able to perform his regular job duties even though he 
 
         experienced some pain upon examination.  This is certainly to be 
 
         expected given the nature of the surgery claimant underwent.
 
         
 
              Claimant has received impairment ratings of 100 percent and 
 
         0 percent.  He is under restrictions of no lifting of greater 
 
         than 50 pounds or of objects larger than 48 inches.  Claimant is 
 
         able to satisfactorily perform his duties with these 
 
         restrictions.  The limitations given by the therapist based on 
 
         the results of claimant's functional capacity evaluation are 
 
         rejected due to claimant's behavior and probable lack of effort 
 
         during the examination.
 
         
 
              Claimant's work history has centered on minimum wage paying 
 
         jobs, and the best position claimant has held is his current 
 
         position with Prince Manufacturing Company.  He is basically an 
 
         unskilled laborer, and given his limited transferable skills, 
 
         will have to rely upon laborer-type positions.
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              Claimant's actual earnings have not suffered due to the work 
 
         injury.  He has continued to receive regular bonuses and 
 
         incentive pay.
 
         
 
              After considering all of the factors, it is determined that 
 
         claimant has sustained a 5 percent industrial disability.
 
         
 
              The next issue to be addressed is claimant's workers' 
 
         compensation rate.
 
         
 
              Claimant argues that bonuses should be included in his rate, 
 
         and based upon a thirteen week earnings record of $5,360.87, he 
 
         is entitled to a workers' compensation's rate of $245.24 per 
 
         week.  Defendants argue that claimant's bonuses should not be 
 
         included in his rate, and that based upon a thirteen week 
 
         earnings record of $4,989.68, his workers' compensation rate is 
 
         $232.00.
 
         
 
              The agency has consistently held that a bonus which is paid 
 
         regularly, even though in varying amounts, is properly included 
 
         in the determination of rate under Iowa Code section 85.61(12).  
 
         Marks v. Richmond Gordman, File No. 679369 (App. Dec. June 29, 
 
         1988).  A bonus which is an integral part of defendants' overall 
 
         compensation system paid to all employees, which is available to 
 
         be paid every month, is a regular bonus to be included in the 
 
         calculation of rate.  Lewis v. Dee Zee Manufacturing, File No. 
 
         797154 (App. Dec. September 11, 1989).
 
         
 
              Claimant's testimony established that the bonus was a 
 
         regular bonus and not an irregular bonus.  The bonus was 
 
         available to all employees who qualified and it was paid each 
 
         week, as demonstrated in defendants' exhibit I, which shows that 
 
         claimant received bonuses ranging from $3.56 per week up to 
 
         $60.14 per week.  These bonuses or incentives were based on 
 
         output of the employees.
 
         
 
              As a result, it is found that claimant is entitled to a 
 
         workers' compensation rate based on the inclusion of the 
 
         incentive pay from September 12, 1987 through December 5, 1987.  
 
         Therefore, claimant's workers' compensation rate based on his 
 
         marital status and total exemptions of one equals $245.24 per 
 
         week.  This rate is based upon claimant's gross weekly earnings 
 
         thirteen weeks prior to the accident of $5,360.80.  The July 1987 
 
         Guide to Iowa Workers' Compensation Claim Handling booklet was 
 
         used to determine claimant's rate.
 
         
 
              The next issue to be addressed is whether claimant is 
 
         entitled to medical benefits, as governed by Iowa Code section 
 
         85.27.
 
         
 
              Iowa Code section 85.27 provides, in relevant part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expense 
 
              incurred for such services.
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
              It has been concluded that claimant received an injury which 
 
         arose out of and in the course of his employment in December 
 
         1987.  It appears from the record that defendants managed 
 
         claimant's medical treatment by sending him to Dr. Pechacek.
 
         
 
              The issues arose as to whether medical treatment provided by 
 
         Jay Strittholt, M.D., from July 18, 1991 through August 8, 1991, 
 
         was authorized by defendants.  The evidence is inconclusive as to 
 
         whether Dr. Pechacek referred claimant to Dr. Strittholt or 
 
         whether claimant's attorney referred claimant to Dr. Strittholt.  
 
         As a result, claimant has failed to sustain his burden by a 
 
         preponderance of the evidence that Dr. Strittholt was an 
 
         authorized physician.  Therefore, claimant is responsible for 
 
         payment of Dr. Strittholt's treatment.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay claimant healing period benefits 
 
         for the time periods he was off work, specifically December 13, 
 
         1987 through December 19, 1987; September 22, 1988 through 
 
         November 13, 1988; and, February 8, 1991 through March 6, 1991, 
 
         for a total of twelve (12) weeks at the workers' compensation 
 
         rate of two hundred forty-five and 24/100 dollars ($245.24).
 
         
 
              That defendants shall pay claimant permanent partial 
 
         disability benefits for twenty-five (25) weeks at the rate of two 
 
         hundred forty-five and 24/100 dollars ($245.24), beginning March 
 
         7, 1991.
 
         
 
              That defendants shall pay medical bills and mileage incurred 
 
         by claimant, as provided for under Iowa Code section 85.27, 
 
         although claimant is responsible for payment of Dr. Strittholt's 
 
         bill.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall be given a credit for benefits 
 
         previously paid.
 
         
 
              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 March, 1992.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
                                       PATRICIA J. LANTZ
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Patricia Wengert
 
         Mr Harry H Smith
 
         Attorney at Law
 
         P O Box 1194
 
         Sioux City IA 51102
 
         
 
         Mr Timothy C Hogan
 
         Attorney at Law
 
         4th Flr Equitable Bldg
 
         Des Moines IA 50309
 
         
 
         
 
              
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1800
 
                                          Filed March 17, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NEIL CHRISTENSEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 871523
 
            vs.                           :                976696
 
                                          :
 
            PRINCE MANUFACTURING CO.,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant sustained a shoulder injury and underwent surgery 
 
            for removal of the distal clavicle and a resection of the AC 
 
            joint.
 
            Claimant was given impairment ratings of 10 percent and 0 
 
            percent.  Restrictions included no lifting of greater than 
 
            50 pounds and no lifting of objects longer than 48 inches.
 
            Claimant's actual earnings were higher after the injury and 
 
            the employer accommodated all of claimant's restrictions.
 
            Awarded 5% industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY ROWLEY,
 
         
 
              Claimant,                             File No. 871656
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         MARION COUNTY,                             D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      NOV 13 1989
 
         
 
         GREAT AMERICAN INSURANCE,           IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Randy Rowley, against Marion County Landfill, employer, and Great 
 
         American Insurance, insurance carrier, as a result of an alleged 
 
         injury sustained on November 17, 1987.  This matter comes on for 
 
         hearing before the deputy industrial commissioner in Des Moines, 
 
         Iowa on September 14, 1989.  The record consists of the testimony 
 
         of the claimant; Helen Rowley, claimant's wife; Rex Eddleman, 
 
         Earl Evinger and Jeff Johnson; claimant's exhibits 1-8 and 
 
         defendants' exhibits B, C, D, E and H.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether the claimant's disability is causally connected 
 
         to his November 17, 1987 injury; and,
 
         
 
              2.  The nature and extent of claimant's disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a 1971 high school graduate and has 
 
         no formal post high school education.  Claimant said he helped 
 
         his parents farm upon graduating from high school up to 1983 or 
 
         1984 when his parents became divorced and sold the farm.  
 
         Claimant described this farm as a 300 acre grain and livestock 
 
         operation.
 
         
 
              Claimant indicated he also drove a school bus at $5.00 per 
 
         hour between 1971 and 1985.  Claimant said he has also worked the 
 
         last 12 years at the Marion County Racetrack making $60.00 per 
 
         night.  Claimant described his work as watching the back shute 
 
         (straight away) for any accidents.  Claimant said if there is an 
 
         accident, he notifies the proper personnel on his radio for help. 
 
         Claimant emphasized that all he does is stand and operate the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         radio.  He is currently performing this job 22 nights in a year. 
 
         Claimant testified to other job history which basically involved 
 
         $5.00 to $6.00 per hour jobs with OK Tire Shop, mowing a 
 
         development with a large tractor and watching the developers' 
 
         corn.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant indicated he had a knee operation four to five 
 
         years ago with no permanency and said it did not result in any 
 
         neck or back injury.  Claimant emphasized that he has had no 
 
         other injury prior to November 17, 1987, or any work limitation, 
 
         lifting problem or serious diseases.
 
         
 
              Claimant testified he began working for the defendant 
 
         employer July 13, 1987, as a bulldozer operator at a county 
 
         landfill making $6.30 per hour.  Claimant was making $7.42 per 
 
         hour when he last worked on November 17, 1987.  Claimant 
 
         emphasized he has never had such a good job as this county job 
 
         plus it paid his health insurance and provided for vacations.  
 
         Claimant said he ran the caterpillar at the landfill one half a 
 
         day hauling dirt so he could bury the garbage later in the day.  
 
         He said he operated the caterpillar most of the day.  Claimant 
 
         described how this metal track bulldozer caused his low back and 
 
         right hip pain while operating it over rocks, dips and washouts.  
 
         Claimant said his back started hurting in September of 1987 and 
 
         got so bad that he stopped working November 17, 1987 and sought 
 
         medical help.  Claimant described his bulldozer as being very 
 
         light and requiring 1,000 pounds of lead on the back end to 
 
         balance out the weight; otherwise the bucket would cause it to 
 
         bounce.  Claimant indicated he would have to scrape and bump the 
 
         dirt walls to loosen the dirt.  Claimant said he would rock the 
 
         bulldozer until the dirt came loose.  Claimant said his bulldozer 
 
         seat was solid and not an air seat.  Claimant related the various 
 
         medical treatments he received.  Claimant said he communicated 
 
         with his employer in July of 1988 as to certain medical 
 
         restrictions and stated he was going to try to get a different 
 
         county job.  Claimant stated he felt he could operate the road 
 
         grader and would try to drive a truck if it had an air seat.  
 
         Claimant related the county terminated him on July 20, 1988, 
 
         because he did not work his entire probationary period.  Claimant 
 
         proclaimed he begged for a job since this was the best job he ever 
 
         had.  Claimant said he was told he was fired because he missed too 
 
         many days work.  Claimant explained he missed no work except for 
 
         his back injury.  Claimant said he went on a diet and lost 27 
 
         pounds but that did not help his back.  Claimant related he was 
 
         scheduled for back surgery January 3, 1989, but he was notified by 
 
         the insurance carrier that they would not pay if Jerome Bashara, 
 
         M.D., did the surgery.  Claimant said his back hurts 80 percent of 
 
         the time and at times brings tears to his eyes. Claimant 
 
         emphasized the pain is worse now than when he last worked on 
 
         November 17, 1987.
 
         
 
              Claimant acknowledged he did not search for work until 
 
         August or September 1988, after Marion County said there was no 
 
         work. Claimant then anticipated surgery by Dr. Bashara so he 
 
         indicated he did not really start looking for work until February 
 
         24, 1989, at the local job service.
 
         
 
              Claimant related the various,job suggestions he received or 
 
         inquiries he made but indicated he could not do these jobs or 
 
         needed retraining or the county would not hire because they knew 
 
         he was hurt.  Claimant revealed he did not tell job service of 
 
         his back injury because he thought this would prevent him from 
 
         getting a job.  Claimant said that he was active in basketball, 
 
         baseball, camping and boating prior to November 17, 1987, but he 
 
         can no longer participate in these activities now.  Claimant said 
 
         he called a Mr. Burger at the Iowa State Department of 
 
         Rehabilitation, but Burger never called him back.  Claimant 
 
         admitted he is a volunteer fire fighter for the City of Knoxville 
 
         and goes on the calls directly to the scene.  He said his job 
 
         entails running the gages and radio and watches the water 
 
         pressure.  Claimant acknowledged he filed a civil rights 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         disability discrimination complaint against Marion County and 
 
         they turned it down.  Claimant indicated Marion County could not 
 
         give him work because he was disabled.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Earl Evinger testified he is a self-employed land developer 
 
         who clears land so homes can be built.  He said he usually does 
 
         not build the homes.  Evinger said he has known claimant 20 plus 
 
         years.  He stated claimant worked for him running a tractor and 
 
         mowing before claimant began working for Marion County in July of 
 
         1987.  Evinger emphasized claimant was a good worker and 
 
         evidenced no medical problem.  Evinger acknowledged he has 
 
         observed a physical change in claimant.  Evinger acknowledged he 
 
         is a friend of claimant's and that they eat breakfast together 
 
         two to three times a week.  He said claimant is not a complainer.  
 
         Evinger related claimant asked him if he had any work to do this 
 
         summer and he did not have any.  Evinger indicated he knew 
 
         claimant wore a brace.  Evinger said he would not want claimant 
 
         to hurt himself running a bulldozer or wrestling cattle.  He said 
 
         he would call claimant if there was work claimant could do for 
 
         him.
 
         
 
              Rex Eddleman testified he has been an assistant loan officer 
 
         at Community National Bank, Knoxville, Iowa for the last 20 
 
         years. He said he has known claimant since claimant was a small 
 
         child. Eddleman said he was a loan officer for claimant's parents 
 
         for many years.  He emphasized claimant was mainly the operator 
 
         of the family farm with others helping.  He acknowledged that 
 
         claimant's parents became divorced and sold the family farm in 
 
         1984-85. Eddleman said claimant is honest and appeared to be a 
 
         hard worker. He does not recall any health problems with the 
 
         claimant prior to 1987.  He acknowledged he has noticed a 
 
         physical deterioration in the claimant since November of 1987.  
 
         Eddleman observed claimant's walking and moving and indicated it 
 
         appears claimant is having difficulty getting around.  Eddleman 
 
         said claimant does not discuss his condition with him but 
 
         claimant told him his back hurts.  He emphasized that if claimant 
 
         could do a job and had intelligence, he would have no hesitancy 
 
         to hire claimant.  He said claimant has a good reputation.  
 
         Eddleman said claimant's brother filed for bankruptcy resulting 
 
         from business relationships with his father and claimant.  
 
         Eddleman said claimant is paying his own portion of the debt 
 
         which has $5,000 remaining instead of taking bankruptcy.
 
         
 
              Helen Rowley, claimant's wife, testified claimant had no 
 
         health problems prior to November 1987.  Mrs. Rowley said 
 
         claimant was angry when fired.  She indicated that before his 
 
         November 1987 injury, claimant was active in basketball and 
 
         baseball.  Mrs. Rowley testified that since November of 1987, 
 
         claimant has changed a lot.  She indicated he has no desire to do 
 
         physical activity and she has a hard time sleeping with him.  She 
 
         emphasized claimant does not like to take medicine as it changes 
 
         his mentality.  Mrs. Rowley said claimant now has a low 
 
         self-esteem and low energy. Mrs. Rowley testified that she works 
 
         for Rolscreen in Pella.  She said Rolscreen would not hire 
 
         claimant due to his injury.  She indicated claimant could not 
 
         keep pace with the work.
 
         
 
              Jeff Johnson, a vocational rehabilitation expert with 
 
         Resource Opportunities, testified that as to the claimant's case, 
 
         he tries actual job placement.  Johnson said he first contacted 
 
         claimant August 25, 1989.  He said claimant is on the low average 
 
         physically and could not do hard or heavy type work.  As to 
 
         transferable skills, Johnson said claimant is on the high end of 
 
         the low end.  Johnson said that claimant has a good level of 
 
         motivation and Johnson is determined to find claimant a job and 
 
         will continue to search until told not to.  Johnson feels 
 
         claimant is employable on a full time basis.  He said claimant 
 
         told him he would like to go back to work.  Johnson admitted that 
 
         injured workers are victims of discrimination today and it is 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         hard for an injured person to get a job.  Johnson said his job is 
 
         to overcome this resistance to hiring.  Johnson acknowledged that 
 
         the defendant employer is afraid to hire claimant due to future 
 
         liability and a feeling that the workers' compensation rates may 
 
         go up.  Johnson said it is hard to find a job for which claimant 
 
         would be eligible.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. S. Randy Winston, M.D., first thought on January 26, 
 
         1988, that claimant had a L3-4 level herniated disc but 
 
         recommended further tests.  On March 3, 1988, Dr. Winston ruled 
 
         out a nerve root compression per myelogram.  He also suggested, 
 
         "With respect to his job, I would feel that if he has an 
 
         alternative to bouncing around on heavy equipment, that he 
 
         explore that opportunity for the future."  (Claimant's Exhibit 1, 
 
         page 6) On March 8, 1988, Dr. Winston wrote:
 
         
 
              Some of the discomfort may be due to the irritation of the 
 
              contrast but I think that is unlikely at this point and 
 
              suggest either work hardening, long-term exercise program 
 
              and obviously a change in his work description, as I 
 
              indicated to you in my communication of March 3.
 
         
 
         (Cl. Ex. 1, p. 7)
 
         
 
              On August 30, 1988, Dr. Winston wrote:
 
         
 
              It is my opinion that Randy Rowley sustained a permanent 
 
              impairment of 5% as a result of his repetitive work 
 
              operating a bulldozer for Marion County Iowa.  It is very 
 
              possible that due to recurrent pain which cannot be 
 
              surgically remedied that he will need to be retrained to do 
 
              other than what he has done formerly.  I would feel that 
 
              those activities such as stretching, bending, twisting, 
 
              reaching, lifting in excess of 50 pounds all should be 
 
              avoided in this patient.
 
         
 
         (Cl. Ex. 1, p. 9)
 
         
 
              Then on July 14, 1989, Dr. Winston wrote:
 
         
 
              The patient's MRI at this time shows perhaps some bulging a 
 
              little bit to the left which is the asymmetric side at the 
 
              L4-5 level.  The anterior/posterior dimension of the canal 
 
              appears to be somewhat narrow but as you may remember, we 
 
              did myelography on this patient in February and this did not 
 
              indicate any evidence of significant stenosis.
 
         
 
              Frankly, I am not certain what is operative here.  He has 
 
              done a good job with his exercise program and weight 
 
              reduction bringing him down considerably from that 270 
 
              pounds which he was when we initially saw him.  I assume 
 
              that this is still related to his incident but I am not 
 
              certain whether or not any type of surgical intervention is 
 
              indicated.
 
         
 
              I am obtaining an EMG and some vascular studies and he may 
 
              need to have an epidural injection.
 
         
 
         (Cl. Ex. 1, p. 10)
 
         
 
              Then on August 1, 1989, Dr. Winston wrote:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              We saw Mr. Rowley in the office in follow-up on July 31, 
 
              1989 and his arterial studies and EMG studies are negative.  
 
              He continues to be disabled by his low back pain and 
 
              tingling of his feet, etc.  I can find nothing in my 
 
              evaluation which would allow me to make a surgical 
 
              recommendation in his case.
 
         
 
              I do believe this man is a "straight shooter" and the only 
 
              recommendation I would make to him would be to try and get 
 
              an opinion from the Low Back Center up in the 
 
              Minneapolis-St. Paul area.
 
         
 
         (Cl. Ex. 1, p. 11)
 
         
 
              Mercy's Department of Radiology report indicated:
 
         
 
              IMPRESSION:
 
              1.  CONGENITAL NARROW SPINAL CANAL IN THE AP DIMENSION AS 
 
              DESCRIBED.
 
              
 
              2.  L4-L5 BROADBASED PROTRUSION/HERNIATION EXTENDING TO THE 
 
              LEFT TO MILDLY INVOLVE LEFT INTERVERTEBRAL FORAMEN. 
 
              QUESTIONABLE CLINICAL SIGNIFICANCE IN PATIENT WITH RIGHT 
 
              LOWER EXTREMITY SYMPTOMS.
 
              
 
              3.  MILD DISK DEGENERATION INVOLVING L3-4, L4-5 AND L5-S1.
 
         
 
         (Cl. Ex. 1, p. 31)
 
         
 
              Claimant's medical records indicate he went through four 
 
         weeks of treatment at the Mercy Hospital Medical Center in 
 
         November of 1988.  On September 30, 1988, Dr. Earl J. McKeever, 
 
         M.D., of the Mater Clinic wrote:
 
         
 
              It was my impression at that time that the patient had a 
 
              herniated nucleus pulposus L4-5, right.  Referral to 
 
              Orthopedic Specialist Bashara has been made.  He will be 
 
              seen by Dr. Bashara within the next week.  An EMG of the 
 
              upper extremities was done and was normal.  CT scan of the 
 
              lumbosacral spine showed spinal stenosis and impingement on 
 
              the L4-5 spinal foramen.
 
         
 
              Mr. Rowley has not reached maximum medical improvement and I 
 
              believe he is now probably a candidate for surgery.  This 
 
              will be evaluated and determined by Orthopedist Bashara. 
 
              Prognosis for this patient is at this time uncertain.
 
         
 
         (Cl. Ex. 3, p. 8)
 
         
 
              On October 6, 1988, Dr. Jerome Bashara, M.D., wrote:
 
              
 
              A CT scan was reviewed from the Knoxville Area Community 
 
              Hospital dated 9-27-88.  The L3-4 disc appears normal.  The 
 
              L4-5 disc is abnormal.  Moderate bulging, centrally and to 
 
              the right.  The L5-S1 disc does not appear to be involved 
 
              with any abnormality.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Diagnosis:
 
         
 
                   Herniated lumbar disc, L4-5 central and right.  Failure 
 
                   of conservative treatment.
 
         
 
         (Cl. Ex. 4, p. 1)
 
         
 
              Dr. Bashara scheduled claimant for a lumbar laminectomy on 
 
         January 4, 1989.  On January 12, 1989, James L. Blessman, M.D., 
 
         of the Mercy Hospital Pain Center wrote:
 
         
 
              PLAN:  I would expect this patient may benefit by either 
 
              trigger point or epidural steroid injection.  I discussed 
 
              this with the patient and he would prefer to wait on these 
 
              at the present time.  I also expect he would benefit by some 
 
              anti-inflammatory medications and some antidepressants.  He 
 
              is having some sleep dysfunction in addition to his pain and 
 
              some early development of depression.  He was agreeable to 
 
              starting on both of these medications and they will be 
 
              started today.
 
         
 
         (Cl. Ex. 6, p. 32)
 
         
 
              On January 26, 1989, Dr. Blessman wrote:
 
         
 
              IMPRESSION:  The patient clearly has lumbar disc syndrome 
 
              with involvement at probably more.than 1 level.  2) 
 
              Exogenous obesity which is exacerbating his pain.
 
         
 
              PLAN:  I discussed with the patient in detail the epidural 
 
              steroid injection protocol as well as it's risks and 
 
              benefits and contrasted this with the trigger point 
 
              injection.  At this time, I do not believe he would benefit 
 
              significantly from trigger point injection as I did not 
 
              elicit such a point on physical examination.  It appears 
 
              that he would probably benefit more from an epidural steroid 
 
              injection due to the nature of his pathology.  At this time, 
 
              he would like to discuss the matter with his family 
 
              including his wife regarding other modalities or possibly 
 
              continuing the conservative modalities he has undertaken for 
 
              his continued back pain.
 
         
 
         (Cl. Ex. 6, pp. 33 & 34)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 17, 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).
 
         
 
              As a 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. 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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
         
 
              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(1) 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.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is a 36 year old individual who has below average 
 
         intelligence and has no real transferable skills.  It appeared 
 
         that the.equipment provided for the claimant to operate was not 
 
         as suitable as it could be for the type of work for which it was 
 
         used.  The greater weight of medical evidence indicates 
 
         claimant's disability was a result of the bouncing around while 
 
         operating the bulldozer for the defendant-employer.  Dr. Randy 
 
         Winston opined that claimant sustained a permanent impairment of 
 
         five percent as a result of his repetitive work in operating a 
 
         bulldozer for defendant employer.  Dr. Winston indicated 
 
         stretching, bending, twisting, reaching and lifting in excess of 
 
         50 pounds should be avoided by this claimant.  Dr. Winston did 
 
         not recommend surgery and wrote that claimant should be retrained 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         since the claimant's recurrent pain cannot be surgically 
 
         remedied.  The medical evidence is confusing as to whether 
 
         claimant has herniated nucleus pulposus L4-5 right as Dr. 
 
         McKeever thought or some bulging at L4-5 level as Dr. Winston 
 
         thought or a herniated lumbar disc L4-5 central and right 
 
         diagnosed by Dr. Jerome Bashara, M.D., or a lumbar disc syndrome 
 
         with involvement at more than one level as indicated by Dr. James 
 
         Blessman of the Mercy Pain Center.  One. fact is certain.  
 
         Claimant has not recovered from his injury.  Dr. Bashara is the 
 
         only specialist who recommended surgery, which is the only 
 
         remaining procedure not performed on the claimant. Claimant has 
 
         had all types of conservative treatment.  The defendant insurance 
 
         company prevented claimant having surgery by Dr. Bashara.  The 
 
         insurance company has never offered to pay for claimant's 
 
         surgery.  It appears at first that defendants desired more 
 
         conservative treatment before any surgery, particularly since Dr. 
 
         Winston felt that surgery was not the answer.  We are now several 
 
         months from claimant's last scheduled surgery and claimant has 
 
         not improved and the insurance carrier is denying any causal 
 
         connection of this disability to the claimant's alleged November 
 
         17, 1987 injury.  Dr. McKeever, in September of 1988, indicated 
 
         claimant was a constituent for surgery, but deferred to 
 
         orthopedic specialist Dr. Bashara whom claimant was going to see 
 
         within a week.  Dr. McKeever did not think claimant had reached 
 
         maximum healing.  (Cl. Ex. 3, p. 8)  It would appear that the 
 
         risk of surgery would be worth the cost to see if claimant's back 
 
         pain and condition can be improved.  The undersigned finds 
 
         claimant's current disability is causally connected to his injury 
 
         on November 17, 1987.  The undersigned finds claimant has a five 
 
         percent impairment to his body as a whole as a result of 
 
         claimant's November 17, 1987 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants contend claimant's healing period ended July 20, 
 
         1988, the date defendant employer terminated claimant.  Claimant 
 
         contends he was still healing as evidence of claimant being 
 
         referred to the Mercy Hospital Pain Clinic.  If improvement was 
 
         not considered or probable, why would claimant be sent through 
 
         this four week program?  Claimant was released from the pain 
 
         clinic February 2, 1989, by Dr. James Blessman of the Mercy Pain 
 
         Clinic with a return to work on February 24, 1989, diagnoses.
 
         
 
              The undersigned finds claimant's healing period ended 
 
         February 23, 1989, inclusive.
 
         
 
              Defendants hired a vocational rehabilitation consultant, a 
 
         Mr. Johnson, to try to find claimant a job.  Johnson acknowledged 
 
         claimant is motivated but with his condition and restriction, he 
 
         has not been successful and does not appear optimistic.  It seems 
 
         Johnson contacted defendant employer who "is afraid to hire 
 
         claimant due to future liability and a feeling their workers' 
 
         compensation rates may go up."  Defendant must not be aware of 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980), which 
 
         holds a refusal to give any sort of work to claimant after he 
 
         suffers his affliction, may justify an award of disability. 
 
         Defendant's fears are unfounded.  Defendant could substantially 
 
         reduce its liability by giving this motivated claimant work.  It 
 
         would appear advisable that surgery be provided by defendant 
 
         insurance carrier for claimant.  It appears claimant is willing 
 
         to try anything.
 
         
 
              Claimant's healing period began November 17, 1987, up to and 
 
         including February 23, 1989.  Claimant presently is not working. 
 
         Defendants' vocational rehabilitation expert reaffirmed what is a 
 
         well known fact that injured workers are victims of 
 
         discrimination and it is harder for an injured worker to go get a 
 
         job. Considering the claimant's age, education, motivation, 
 
         inability to engage in employment for which claimant is fitted, 
 
         claimant's length of healing period, present medical condition 
 
         and all those other factors that are considered in determining 
 
         industrial disability, claimant has a 50 percent industrial 
 
         disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant incurred a work related lumbar injury on 
 
         November 17, 1987.
 
         
 
              2.  Claimant's disability is the result of his work related 
 
         injury on November 17, 1987.
 
         
 
              3.  Claimant was released to return to work on February 24, 
 
         1989.
 
         
 
              4.  Claimant has an impairment to his body as a whole as a 
 
         result of his November 17, 1987 injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5.  Claimant incurred a healing period beginning November 
 
         17, 1987 up to and including February 23, 1989, at the rate of 
 
         $211.18 per week.
 
         
 
              6.  Defendant employer terminated claimant's job because 
 
         claimant missed too much work due to his November 17, 1987 
 
         injury.
 
         
 
              7.  The vocational rehabilitation consultant, who was hired 
 
         by defendant insurance carrier to find claimant a job, called 
 
         defendant employer as to rehiring claimant.  The employer refused 
 
         to consider rehiring claimant because of future liability and 
 
         fear that its workers' compensation rate would go up.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant received a lumbar injury that arose out of and in 
 
         the course of his employment on November 17, 1987.
 
         
 
              Claimant's disability is causally connected to his lumbar 
 
         back injury on November 17, 1987.
 
         
 
              Claimant's healing period began November 17, 1987 up to and 
 
         including February 23, 1989.
 
         
 
              Defendant employer refused to rehire claimant who was 
 
         injured at work.
 
         
 
              Claimant was terminated by defendant employer from his job 
 
         and refused to consider rehiring claimant upon inquiry from the 
 
         defendant insurance company's vocational rehabilitation expert.
 
         
 
              Claimant has a 50 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of two hundred eleven and 18/100 dollars 
 
         ($211.18) for the period beginning November 17, 1987 up to and 
 
         including February 23, 1989, which totals sixty-six point 
 
         four-two-nine (66.429) weeks.
 
         
 
              That defendants shall pay unto claimant two hundred fifty 
 
         (250) weeks of permanent partial disability benefits at the rate 
 
         of two hundred eleven and 18/100 dollars ($211.18) beginning 
 
         February 24, 1989.
 
         
 
              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 costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 and defendants 
 
         shall file activity reports upon payment of this award as 
 
         required by this agency pursuant to Division of Industrial 
 
         Services Rules 343-3.1.
 
         
 
         
 
              Signed and filed this 13th day of November, 1989.
 
         
 
         
 
         
 
                                        
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 8th St. SE
 
         Altoona IA  50009
 
         
 
         Mr. Jon K. Swanson
 
         Attorney at Law
 
         900 Des Moines Bldg.
 
         Des Moines IA  50309
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1108; 5-1803
 
                                                 Filed November 13, 1989
 
                                                 BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY ROWLEY,
 
         
 
              Claimant,
 
                                                      File No. 871656
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         MARION COUNTY,
 
                                                       D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         GREAT AMERICAN INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1108
 
         
 
              Found claimant's disability causally connected to his 
 
         injury.
 
         
 
         5-1803
 
         
 
              Employer refused to rehire claimant because of future 
 
         liability and fear that its workers' compensation rate would go 
 
         up.
 
         
 
         5-1803
 
         
 
              Claimant awarded 50 percent industrial disability.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN ROBINSON,
 
         
 
              Claimant,
 
                                                   File No. 872000
 
         vs.
 
                                                 A R B I T R A T I O N
 
         HOLIDAY EXPRESS CORP.,
 
                                                    D E C I S I O N
 
              Employer,
 
                                                 
 
         and                                           F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE,                    OCT 25 1989
 
         
 
              Insurance Carrier,                  INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         John Robinson, against Holiday Express Corporation, employer, and 
 
         Liberty Mutual Insurance Carrier, defendants, to recover benefits 
 
         as a result of an alleged injury occurring on December 6, 1987. 
 
         This matter came on for a hearing before the deputy industrial 
 
         commissioner in Ft. Dodge, Iowa on September 5, 1989.  The record 
 
         consists of the testimony of the claimant, Stanley Thorpe and Dan 
 
         L. Rogers; claimant's exhibits 1 and 2 and defendants' exhibits 
 
         A, with 13 sub parts.
 
         
 
              At the beginning of the hearing, the parties agreed that 
 
         this action should be an arbitration action and not a 
 
         review-reopening as filed.  The claimant was allowed to amend his 
 
         petition to one of arbitration.
 
         
 
                                      ISSUES
 
              
 
              The issues set out in the prehearing report for resolution 
 
         are:
 
         
 
              1.  Whether the claimant's injury arose out of and in the 
 
         course of his employment;
 
         
 
              2.  Whether claimant's disability is casually connected to 
 
         his injury; and.
 
         
 
              3.  The nature and extent of claimant's disability and the 
 
         rate of weekly compensation if liability is found.
 
                                        
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he went through his junior year and 
 
         part of his senior year of high school and then quit to work on 
 
         his parents' farm.  Claimant said he was a below average student. 
 
         Claimant stated he was starting to have an alcohol problem at 
 
         that time.  Claimant emphasized his last alcoholic drink was 
 
         January 13, 1984.  Claimant said he has never obtained a GED.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he basically worked at manual labor 
 
         jobs after leaving high school up to the time he was hired by the 
 
         defendant employer in September 1986.  Claimant said he passed 
 
         the defendant employer's preemployment physical with no 
 
         restrictions. Claimant stated he first took a truck driving 
 
         course at Iowa Lakes Community College and then was hired full 
 
         time by defendant employer.  Claimant testified he was paid 17 
 
         cents a mile plus medical benefits for his family, meals and 
 
         subsistence pay.  $25.00 out of every 500 miles was tax free and 
 
         no taxes were withheld from this $25.00.  Claimant said he drove 
 
         for defendant employer nationwide in 48 states.  He indicated the 
 
         defendant employer was a good employer and kept the trucks 
 
         operating all the time.
 
         
 
              In August 1987, claimant said he quit defendant employer to 
 
         work for another trucking company that paid more money.  Claimant 
 
         emphasized at that time he had no injuries or prostate problems. 
 
         Claimant quit this employer due to the fact that the company's 
 
         truck he was driving was seized.  He said the employer had debt 
 
         problems and a bad relationship was developing.
 
         
 
              Claimant stated he rejoined the defendant employer November 
 
         5, 1987, as a long distance driver.  He did not need to take 
 
         another physical.  Claimant testified that while driving his 
 
         loaded truck to Chicago on Interest 80 on December 6, 1987, he 
 
         encountered several bumps.  He said that his airseat bottomed out 
 
         after hitting a bump and it felt like his "guts exploded". 
 
         Claimant said he felt a crazy sensation and stopped his truck 
 
         down the road.  He said he passed out two times.  Claimant 
 
         described the truck he was driving as a piece of junk.  He said 
 
         it broke down several times in this haul from Los Angeles to 
 
         Chicago. Claimant said his airseat had a button to control the 
 
         weight, but it had bottomed out before.  Claimant said he started 
 
         to urinate blood and had a burning sensation.  Claimant testified 
 
         he made a call and was told to call the hospital at Davenport, 
 
         Iowa. Claimant obtained a prescription and then continued to 
 
         drive to Chicago.
 
         
 
              Claimant said he eventually returned to his home base and 
 
         sought medical treatment with Jerry D. Dawson, M.D., who referred 
 
         claimant to an urologist.  Claimant described the various medical 
 
         procedures performed on him which involved checking the prostate 
 
         gland, running tubes through the penis, dilation of the penis and 
 
         massaging the prostate gland through the rectum.  Claimant said 
 
         he is not presently being treated.
 
         
 
              Claimant said he has been off work since December 10, 1987, 
 
         except for a period of March 11, 1988 to May 18, 1988, when he 
 
         tried to return to work.  Claimant said that he again began 
 
         urinating chunks of blood and his cramps and pain began coming 
 
         back during this March to May 1988 period.
 
         
 
              Claimant stated he wanted to return to work for defendant 
 
         employer at another non-truck driving job like dispatcher or 
 
         safety inspector, but he was told that there was no other job for 
 
         which they would hire him.  Claimant said the defendant employer 
 
         told him he had been hired only as a truck driver.  Claimant 
 
         emphasized he would like to drive a truck or operate heavy 
 
         equipment but is not able to do so due to his condition.  
 
         Claimant said long car rides and bumps bother him.  Claimant said 
 
         he has never had a desk job and emphasized he could not do heavy 
 
         manual work without it causing him to urinate blood again.  
 
         Claimant acknowledged that he did not contact vocational 
 
         rehabilitation until his benefits were stopped in September 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said he grew up riding horses.  He said he also 
 
         worked for three years as a ranch manager in the early 1980's in 
 
         Kansas and Texas during which time he rode horses daily.  
 
         Claimant admitted that he worked for no employer longer than one 
 
         year except for 18 months at a Colorado job.  Claimant said he 
 
         tried to work for NAPA and filed an application.  He also filed 
 
         with Job Service.  Claimant said Job Service told him they would 
 
         not send him to any place with his medical condition.  Claimant 
 
         admitted he just started last week for his GED at Iowa Lakes 
 
         Community College but emphasized he took three to four months 
 
         preparatory classes. He said he had to determine his scholastic 
 
         ability to see if college courses could also be taken.
 
         
 
              Stanley Thorpe testified he is a professional vocational 
 
         specialist and sales representative for Iowa Lakes Community 
 
         College.  He indicated he tries to find employment for the 
 
         handicap and is familiar with the job market.  He indicated he 
 
         had been contacted by the claimant's attorney to see if he could 
 
         find claimant a job.  Mr. Thorpe indicated he gave claimant 
 
         several tests and reviewed claimant's medical records.  Mr. 
 
         Thorpe emphasized he was familiar with a malingerer and has 
 
         encountered such people.  He opined claimant was not a 
 
         malingerer.  He also concluded claimant is not employable because 
 
         of too many physical problems.  He contends claimant would have 
 
         no consistency in a 40 hour week and that an employee is expected 
 
         to work 40 hour week without a long illness or time off.  He said 
 
         he could not place claimant in a competitive job.  Thorpe 
 
         admitted that he personally did not conduct any test.  He also 
 
         admitted that he did not verify the information claimant told him 
 
         as to what he can and cannot do. He did emphasize he personally 
 
         observed claimant.  Thorpe indicated claimant is adverse to 
 
         education as exhibited by claimant's feeling as to academia.  
 
         Thorpe admitted he has never been licensed in Iowa as a 
 
         psychologist examiner.  He said he usually doesn't administer the 
 
         test in the client's home, but in claimant's situation, bad 
 
         weather, no client phone and time restraints required home 
 
         testing.  Thorpe also acknowledged that 80 percent of his time is 
 
         involved in coordination of college workshop and as a sales 
 
         representation for Iowa Lakes Community College.  Thorpe 
 
         emphasized his concern was claimant's ability and transferable 
 
         skills and not any psychological problem.
 
         
 
              Dan L. Rogers testified he was a licensed clinical 
 
         psychologist.  He indicated he first met claimant on August 16, 
 
         1989, at the defendant's attorney's request.  He met claimant the 
 
         second time at the Northwest Iowa Medical Center for a test on 
 
         August 19, 1989.  Rogers stated he took claimant's history and 
 
         administered various tests.  Rogers said claimant related to him 
 
         chaos in claimant's marriage, especially child rearing and his 
 
         wife being a Jehovah Witness and he being a Catholic.  He stated 
 
         claimant was concerned about financial matters and was becoming 
 
         depressed; that it was more a stress matter.  He said claimant 
 
         indicated claimant's wife made claimant mad and he didn't 
 
         understand why.  Rogers said claimant tested as follows:  IQ 89, 
 
         spelling 5th grade and math 4th grade.  Rogers concluded claimant 
 
         is slightly below average for learning in college.  Rogers 
 
         indicated claimant expressed physical complaints, which showed 
 
         lesser concern for them due to his underlying problems.  Rogers 
 
         further concluded claimant does not have depression or anxiety 
 
         but is preoccupied with pain without physical findings.  Rogers 
 
         said claimant has a passive aggressive personality disorder 
 
         developed over time as an adolescent and not the result of a 
 
         trauma.  Rogers opined that truck driving would not be a good 
 
         occupation for the claimant.  He emphasized that claimant's 
 
         present reaction or condition is from the past and not the truck 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         driving incident. Rogers admitted he doesn't attempt to find jobs 
 
         for people and has never placed a person in a competitive job.  
 
         Rogers testified that prostatism would not affect a claimant's 
 
         employment.  He emphasized that it is immaterial that claimant 
 
         did not have these current symptoms before the alleged accident 
 
         of December 6, 1987. He said the length of time claimant was 
 
         driving or whether he even drove a truck is not important.  
 
         Rogers admitted he did not see claimant's personal file or did he 
 
         know that a doctor told claimant not to go back to work as a 
 
         truck driver as this would adversely affect claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Robert L. Mendenhall, M.D., urologic surgeon, testified by 
 
         way of deposition on April 29, 1989, that he first saw claimant 
 
         in his clinic December 16, 1987, and has seen him several times 
 
         with the last visit being around April 19, 1989.  Dr. Mendenhall 
 
         indicated claimant's symptoms have been similar and treatment has 
 
         involved antibiotics, anti inflammatory medicine and prostatic 
 
         massage.  When Dr. Mendenhall was asked what the massage consists 
 
         of and what the purpose of it is, he answered:
 
         
 
              A.  He has always appeared to have what we call a 
 
              nonbacterial prostatitis, which is one -- it's a gland 
 
              that's consistent with congestion.  The prostate gland is 
 
              really an organ that has millions of little glands in it.  
 
              It may be if you think of.a tree.  All the little leaves on 
 
              a tree are glands that drain into branches and finally some 
 
              ducts and into the channel and this sort of thing.  When it 
 
              gets swollen and inflamed, it gets congested.  The massaging 
 
              or by intercourse, either way, is an attempt to drain some 
 
              of these secretions and some of the fluids from the prostate 
 
              and relieve some of the swelling and congestion.  On the 
 
              massage it's not something you use often, but it does help 
 
              some people.  So at this point we're going to try several 
 
              successive weeks of prostate massage and see if we can 
 
              symptomatically help.  That's what was done two weeks ago, 
 
              probably last week, and will be done for the next few weeks.
 
         
 
         (Mendenhall Deposition; Claimant Exhibit 1 Page 6 &  7).
 
         
 
         Dr. Mendenhall was asked and answered as follows:
 
         
 
              Q.  What are the established or medically known causes of a 
 
              nonbacterial prostatitis?
 
              
 
              A.  Can be etiopathic, which means it can occur for no 
 
              particular reason.  I think probably some type of 
 
              irritation, whether such a situation as riding on heavy 
 
              equipment, something that would cause a chronic irritation 
 
              to the perineum or the area between the scrotum and the 
 
              rectum is probably most common.  Perhaps a few people who 
 
              are celibate, perhaps not having sex, this may potentially 
 
              cause some increased congestion.  But this may not be 
 
              routine.  I think most generally we see people that have had 
 
              some activity such as the truck drivers, the farmers, 
 
              traveling salesmen, this sort of thing most common.
 
         
 
         (Mendenhall Dep. Cl. Ex. 1 p. 10).
 
         
 
              Dr. Mendenhall said he performed a circumcision which was 
 
         not related to claimant's prostate problem, and a cystoscopy and 
 
         urethral dilation both connected to claimant's prostate problem, 
 
         in January of 1988.  Dr. Mendenhall testified that he thought 
 
         claimant could return to work around the first week of March 
 
         1988, but he did not know if in fact claimant returned to work.  
 
         Dr. Mendenhall acknowledged that he was concerned at some point 
 
         in claimant's treatment as to claimant having a psychological 
 
         overlay and recommended claimant's seek a second opinion at the 
 
         University of Iowa Hospitals.  Dr. Mendenhall indicated that 
 
         claimant has chronic prostatitis and he did not know when 
 
         claimant would recover.  Dr. Mendenhall was asked:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Dr. Mendenhall, as I understand it you were contacted on 
 
              or about that date by Mr. Kevin Cook who was in some fashion 
 
              related to the Workers' Compensation carrier and at that 
 
              time he wanted to know whether the prostatitis was 
 
              work-related. What did you tell Mr. Cook at that time, sir?
 
         
 
              A.  Well, I felt that certainly driving heavy equipment such 
 
              as a truck could exacerbate and potentially cause the 
 
              prostatitis.
 
         
 
              Q.  Dr. Mendenhall, is it your opinion to a reasonable 
 
              degree of medical certainty that it is very likely that the 
 
              prostatitis is work-related to the trauma of driving a major 
 
              truck?
 
         
 
              A.  I think that there's a real possibility that that could 
 
              cause it.
 
         
 
              Q.  And when we're talking about possibilities and 
 
              probabilities, perhaps by way of definition I could use this 
 
              analogy.  If it's greater than 50 percent lawyers often 
 
              talks in terms of probabilities.  If it's less than 50 
 
              percent they'll talk in terms of possibilities.  Using that 
 
              reference do you feel that the truck driving is very likely 
 
              work -- or excuse me -- the prostatitis is very likely 
 
              work-related to the trauma of driving a truck?
 
         
 
              A.  I would say that driving a truck is a very potential 
 
              irritative action to prostatitis and a possible, possible 
 
              causative.  Is it probable in this individual?  If you look 
 
              for some activity that they are doing that could be related 
 
              to the prostatitis, I would say in this individual it would 
 
              probably be -- or likely be related to the truck driving.  
 
              If I had to choose it.  Now, the other one situation here 
 
              was the situation of a urethral stricture.  And that may or 
 
              may not have contributed in the overview also.
 
         
 
              Q.  Doctor, would you agree with me that the truck driving 
 
              certainly aggravated any condition that was preexisting as 
 
              it relates to the prostatitis?
 
         
 
              A.  I would say yes.
 
         
 
              Q.  Doctor, I note from your deposition here today it's 
 
              obviously quite difficult to determine what the future holds 
 
              for John.  Would you recommend that he stay away from 
 
              operating heavy equipment and from such activities as 
 
              driving a truck for his gainful employment?
 
         
 
              A.  Certainly as long as he continues to have symptoms 
 
              consistent with prostatitis.  And I don't mean just clinic 
 
              -- just subjectively but also objectively.  When I've 
 
              examined his prostate and looked at prostate secretions, he 
 
              continues to have an increased number of white cells.  Until 
 
              that totally resolves and he seems to have a significant 
 
              period of lack of symptoms and subjectively feeling well and 
 
              no clinical evidence of prostatitis, I would recommend that 
 
              staying away from heavy equipment riding and operating heavy 
 
              equipment would be indicated.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  At what point will you -- let me ask it this way.  Today 
 
              as you sit here do you know whether or not John Robinson as 
 
              a result of the chronic prostatitis has an injury that's 
 
              permanent in nature?
 
         
 
              A.  Well, by the definition of it being chronic prostatitis 
 
              I think that it does not give you a feeling of a definitive 
 
              amount of time in regard to how long he's going to have 
 
              these symptoms.  I think it varies by the individual and I 
 
              could not put a determination of when he could expect to no 
 
              longer have those symptoms.
 
         
 
         (Mendenhall Dep:  Cl. Ex. 1 pp. 26-29).
 
         
 
              Dr. Mendenhall testified that he recommended and preferred 
 
         claimant seek some type of employment where he didn't put himself 
 
         at risk with that sort of perineal trauma and aggravation.
 
         
 
              On January 6, 1988, Dr. Mendenhall wrote:
 
         
 
                   I have seen Mr. John Robinson since December 16, 1987. 
 
              He had sudden onset of testicular, inguinal, and suprapubic 
 
              discomfort.  He also had an element of hematospermia and 
 
              evaluation of his urine found multiple red cells, occasional 
 
              white cell.  The prostate was boggy and expressed prostatic 
 
              secretions showed an element of red cells and white cells. 
 
              Expressed prostatic secretion urine for culture and 
 
              sensitivity showed no growth.  He has gotten better with 
 
              antibiotic and Ibuprofen therapy.
 
         
 
                   In summary, I feel he had a work-related nonbacterial 
 
              prostatitis caused by driving heavy equipment such as his 
 
              truck and is work-related.  He will be undergoing a 
 
              cystoscopic exam in correlation his symptoms of prostatitis.
 
         
 
         (Defendants Exhibit. A).
 
         
 
              On August 31, 1988, Dr. Mendenhall wrote:
 
         
 
                   This is regarding Mr. John Robinson, who has been under 
 
              my care since the turn of the new year.  He has developed a 
 
              case of chronic recurrent prostatitis, at this point when 
 
              seen a couple of weeks ago was over the evidence of 
 
              prostatitis.  Regardless, driving a truck would put a 
 
              patient with chronic recurrent prostatitis at significant 
 
              risk for recurrence of his prostatitis and this has already 
 
              been this young man's history since I have followed him.
 
         
 
                   In summary, he has chronic recurrent prostatitis, seems 
 
              to be doing well at this time.  I have discharged him from 
 
              my follow up unless his symptoms recur.  Regardless, driving 
 
              a truck will put him at significant risk for recurrence.
 
         
 
         (Def. Ex. A).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On December 22, 1988, Dr. Mendenhall wrote:
 
         
 
                   I am writing in regards to Mr. John Robinson, Holiday 
 
              Express Corp, WC 478-080977.  Mr. Robinson has the history 
 
              of chronic prostatitis.  It does not appear to be active at 
 
              this time.  He does however, have occasional perineal 
 
              discomfort which ideally can be controlled with Ibuprofen.  
 
              I do think it would be good for him to see a psychiatrist to 
 
              help him cope with these symptoms.  To the best of my 
 
              knowledge, this has not been done at this time.
 
         
 
                   In regards to the truck driving, I think it certainly 
 
              carries a potential to exacerbate his history of chronic 
 
              prostatitis.
 
         
 
         (Def. Ex. A).
 
         
 
              Stephen L. Piercy, M.D., a urology specialist, testified by 
 
         way of a deposition of June 27, 1989, that the only time he saw 
 
         claimant was January 26, 1988.  He said claimant was referred by 
 
         Liberty Mutual Insurance Company.  Dr. Piercy was asked and 
 
         answered as follows:
 
         
 
              Q.  "Most likely related to driving a truck."  Can you state 
 
              to a reasonable degree of medical certainty that the 
 
              condition he had was most likely related to driving a truck?
 
                   
 
              A.  Well, I think that driving a truck may -- well any kind 
 
              activity, driving a tractor or anything can -- if you've got 
 
              prostatitis, can make it flare up.  I don't know if I could 
 
              say absolutely that that was the direct cause of it, you 
 
              know what I'm saying.  Why don't all truck drivers get 
 
              prostatitis?  I don't know.
 
              
 
              Q.  Yes, yes.
 
              
 
              A.  I've had farmers who have had prostatitis.  Whenever 
 
              they go to planting time, they bounce around on the tractor 
 
              and it flares up.
 
              
 
              Q.  But that's because they already have it?
 
              
 
              A.  Well, if they weren't bouncing on the tractor, would 
 
              they have gotten it?  I don't know, you know what I'm 
 
              saying.
 
              
 
              Q.  Let me ask--
 
              
 
              A.  It could be that bouncing around in his truck made it 
 
              worse or caused it.  I don't know.  It--You know what I'm 
 
              saying.  We don't really know what causes prostatitis, and 
 
              we know that bouncing around makes it worse.
 
         
 
         (Cl. Ex. 2 pp. 11-12).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On January 26, 1988, Dr. Piercy wrote:
 
         
 
                   I feel that Mr. Robinson has had prostatitis, most 
 
              likely related to driving a truck.  He has improved on 
 
              antibiotics per Dr. Mendenhall.  He still has several white 
 
              cells in the expressed prostatic secretions and the prostate 
 
              is still slightly spongy.  He is also healing well from a 
 
              circumcision, which is unrelated.
 
         
 
         (Def. Ex. A).
 
         
 
              Bernard Fallon, M.D., Department of Urology at the 
 
         University of Iowa, wrote on December 30, 1988:
 
         
 
                   In regards to the etiology of his chronic prostatitis, 
 
              I would find it very difficult to state what this is. 
 
              Certainly, it is felt that there is a higher incidence of 
 
              chronic prostatitis in people who, in large amounts of time, 
 
              drive, whether this be in cars, trucks, or in farm vehicles. 
 
              There are many people, however, who develop chronic 
 
              prostatitis in other walks of life as well.
 
         
 
         (Def. Ex. A).
 
         
 
              On January 25, 1988, Dr. Fallon wrote:
 
         
 
                   In answer to your question #2, I cannot agree that his 
 
              prostatitis was caused as a truck driver.
 
         
 
                   I think that Dr. Mendenhall might be a better source 
 
              for answers to these questions, as in his note of December 
 
              21, 1987 he states that Mr. Robinson is a truck driver, and 
 
              that he thinks, very likely, that Mr. Robinson's prostatitis 
 
              is work related to the trauma of driving a major truck.
 
         
 
         (Def. Ex. A).
 
         
 
              Dr. Fallon suggested in his December 1988 letter that 
 
         claimant might see a psychiatrist who might enable claimant to 
 
         better deal with his problem of chronic prostatitis.  In his 
 
         January 25, 1989 letter he reiterated his belief claimant might 
 
         benefit from psychiatric care, but in answer to claimant's 
 
         attorney's letter, he stated:  "It is difficult to adamantly 
 
         state that he requires psychiatric care."
 
         
 
              "Holy Family Hospital Records on January 13, 1988 reflect: 
 
         "Operative procedure:  1.  Cystoscopy 2.  Urethral dilatation 3. 
 
         Circumcision."  (Def. Ex. A)
 
         
 
                   Claimant's log records indicate he drove 12,192 miles 
 
              for the five weeks immediately proceeding December 6, 1987 
 
              injury.  Prior to his December 6, 1987 injury, claimant had 
 
              only worked for the defendant employer since his last 
 
              employment for five weeks and one day.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Def. Ex. A)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 6, 1987, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 6, 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, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 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 Hospital 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 v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), 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. 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."
 
         
 
              Iowa Code section 85.34(1) 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.
 
              
 
              A healing period may be interrupted by a return to work. 
 
         Riesselmann v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
         
 
              This 33 year old claimant has only had manual labor jobs 
 
         since he left high school during the middle of his senior year.  
 
         He has not obtained a GED but appears to be attempting to get it.  
 
         It appears it is taking claimant longer than normal to obtain it 
 
         and he has not pursued it as eagerly as he could.
 
         
 
              Claimant has had many problems during his life beginning in 
 
         early childhood.  He has come from an alcoholic family and 
 
         suffered abuse from his father.  His marriage has had many 
 
         difficulties.
 
         
 
              On December 6, 1987, claimant was a full time employee 
 
         driving a truck for defendant employer.  He was experiencing no 
 
         physical problems, illness or injuries prior to that date.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant describes the rough bouncing trip on Interstate 80 
 
         on December 6, 1987, while hauling a load for defendant employer 
 
         to Chicago.  Claimant said that on one particular road bump his 
 
         airseat bottomed out.  He felt like his "guts exploded."  
 
         Claimant began feeling pain and started urinating some blood.  
 
         Claimant was diagnosed as having prostatitis.
 
         
 
              There is no other explainable reason why claimant occurred 
 
         the onset of what is now chronic prostatitis other than this 
 
         December 6, 1987 injury.  There is considerable medical testimony 
 
         in evidence regarding the causes of or irritation of prostatitis. 
 
         The greater weight of the medical evidence shows claimant's 
 
         nonbacterial prostatitis resulted from claimant's driving his 
 
         truck while working for defendant employer.  There is testimony 
 
         as to whether claimant's prostatitis was actually caused by his 
 
         truck driving or whether it triggered it or caused the condition 
 
         to flare up thereby aggravating a dormant condition.
 
         
 
              The undersigned believes it is an academic question as it 
 
         applies to claimant as to whether claimant's truck driving was a 
 
         cause or etiology of his chronic prostatitis or whether the 
 
         latent condition was aggravated by claimant's truck driving.
 
         
 
              In either case, the claimant's condition involving his 
 
         prostatitis was caused by his truck driving injury on December 6, 
 
         1987.  The greater weight of medical testimony overwhelming 
 
         supports the conclusion that claimant's prostatitis at the very 
 
         least was a dormant latent condition that was triggered and 
 
         materially aggravated by his truck driving injury on December 6, 
 
         1987.  It is obvious that claimant should not drive a truck for a 
 
         living any longer.  The medical evidence shows that claimant's 
 
         chronic prostatitis may last for as long claimant's lifetime.  
 
         Dr. Mendenhall testified he did not know when claimant could 
 
         recover, but emphasized that:  "driving a truck will put him at 
 
         significant risk for reoccurrence."  The undersigned finds that 
 
         claimant was injured on December 6, 1987, while driving a truck 
 
         for defendant employer that arose out of and in the course of his 
 
         employment. The undersigned further finds that claimant's latent 
 
         dormant prostatitis was triggered and materially aggravated by 
 
         his December 6, 1987, injury causing claimant's present chronic 
 
         prostatitis.
 
         
 
              Claimant's evaluation shows he presently has below average 
 
         intelligence.  It seems he is not enthusiastic for acquiring or 
 
         seeking formal education.  Claimant's childhood and home 
 
         environment contributes to this.  Claimant is young.  He 
 
         presently has no transferable skills except truck driving.  His 
 
         income over his working life has been minimal.  If claimant finds 
 
         a job he most likely would make minimum wage.  It is certain that 
 
         based on the present status of claimant's medical history, he 
 
         should not return to truck driving or any job that could cause 
 
         his prostatitis to flare up.  It appears a sedentary job is what 
 
         claimant should seek.  He has never had a desk type job.  Heavy 
 
         lifting or exertion can also cause a flare of prostatitis. 
 
         Claimant has not eagerly looked for another job.  It is 
 
         understandable with his condition.  An employer does not want a 
 
         person who can not reasonably expect to work 40 hours a week on a 
 
         consistent basis.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mr. Thorpe felt claimant was not employable.  He did not 
 
         make any calls or contacts on behalf of claimant to see whether 
 
         in fact there may be employers to take claimant.
 
         
 
              The undersigned cannot accept Mr. Rogers' theories or 
 
         conclusions involving this claimant.  Defendants and Rogers 
 
         contend that the reason claimant cannot drive a truck is because 
 
         his psychological qualms from the past will be magnified by long 
 
         hauls in a truck thinking of his wife and his dependency on 
 
         others.  Rogers agrees that claimant can no longer drive a truck, 
 
         but claims it is for psychological reasons and not prostatitis. 
 
         Rogers is not a medical doctor and his medical conclusions are 
 
         given no weight.  Defendants agree that if claimant's 
 
         psychological problems are triggered by his injury, then 
 
         defendants take claimant as is.
 
         
 
              There was a recommendation by Dr. Fallon that claimant seek 
 
         psychiatric help as this may help with claimant's prostatitis. 
 
         Pursuant to a letter from claimant's attorney, Dr. Fallon of the 
 
         University of Iowa said he wasn't adamant about this 
 
         recommendation.  Dr. Mendenhall was concerned about some 
 
         psychological overlay with claimant and recommended claimant seek 
 
         a second opinion at the University of Iowa Hospitals.  Although 
 
         claimant sought a second opinion, he has not further pursued this 
 
         even though the undersigned believes some psychiatric help may 
 
         contribute to claimant's recovery, at least in part.  In any 
 
         case, defendants take claimant with all his underlying problems 
 
         which have been triggered or materially aggravated by his 
 
         December 6, 1987 injury.  Claimant's psychological problems, if 
 
         any, prior to December 6, 1987, were not affecting claimant's 
 
         ability to work full time as truck driver.  The undersigned must 
 
         consider the claimant's current status and not speculate as to 
 
         what future medical services might solve.  The undersigned finds 
 
         the claimant has a permanent partial disability to his body as 
 
         whole.
 
         
 
              Claimant was off work December 11, 1987, to and including 
 
         March 10 and May 18, 1988 to the present.  Dr. Mendenhall 
 
         testified that he thought on February 24, 1988, that claimant: 
 
         "can return to work in one to two weeks."  Claimant incurred his 
 
         first healing period beginning December 11, 1987 to and including 
 
         March 10, 1988 (13 weeks).  Claimant had a reoccurrence of his 
 
         problems and was off for a second healing period beginning May 5, 
 
         1988.  Dr. Mendenhall, on August 31, 1988, said he discharged 
 
         claimant unless the symptoms reoccur.  Claimant's second healing 
 
         period begins May 18, 1988 to and including August 31, 1988 
 
         (15.143 weeks).
 
         
 
              Claimant inquired of defendant employer his willingness to 
 
         work for the defendant at another job like a safety inspector or 
 
         dispatcher.  Claimant stated defendant had only truck driving 
 
         jobs available.  Some might consider this a refusal to hire or 
 
         give employment to the claimant.  It is obvious defendant 
 
         employer could substantially help in increasing the earning 
 
         capacity of this claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Taking into consideration claimant's age, education, 
 
         motivation, inability to engage in the employment of which he is 
 
         fitted because of injury, his earnings prior to and after the 
 
         injury, his physical, emotional and intellectual qualifications, 
 
         potential rehabilitation, work experience prior to and after his 
 
         injury, the severity and location of the injury, and his medical 
 
         prior to injury, after the injury, and presently, the undersigned 
 
         finds that claimant has a 50 percent industrial disability.
 
         
 
              The last issue for resolution is the determination of the 
 
         rate at which claimant will be paid his weekly benefits.  The 
 
         defendant was paid 31 1/7 weeks of benefits at the weekly rate of 
 
         $147.13.  The evidence shows claimant last worked for the 
 
         defendant employer prior to his December 6, 1987 injury for 5 
 
         weeks and 1 day.  Claimant was paid 17 cents a mile.  For the 
 
         five weeks before his injury, claimant drove 12,192 miles.  
 
         Dividing this by 17 equals $717.18.  Dividing this figure by 5 
 
         equals $143.00 gross per week.  The parties stipulated as to the 
 
         existence of 2 exemptions.  Claimant's weekly benefit rate is 
 
         $100.99.
 
         
 
              There was testimony that for every 500 miles driven by the 
 
         claimant, $25.00 of his 17 cents per mile compensation was tax 
 
         free and nothing was withheld therefrom.  This evidence was not 
 
         very clear, but it appears that $25.00 is included in the 17 
 
         cents per mile and not an additional amount.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was injured while driving a truck for defendant 
 
         employer on December 6, 1987.
 
         
 
              2.  Claimant has a nonbacterial chronic prostatitis 
 
         condition as a result of his December 6, 1987 injury.
 
         
 
              3.  Claimant has no high school diploma or equivalent GED.
 
         
 
              4.  Claimant's work history has mainly involved manual labor 
 
         jobs.
 
         
 
              5.  Claimant has below average intelligence.
 
              
 
              6.  Claimant is no longer able to drive a truck for a living 
 
         without putting himself at risk for reoccurrence of prostatitis.
 
         
 
              7.  Claimant has not worked since May 17, 1988.
 
              
 
              8.  Claimant is willing to return to work for defendant 
 
         employer at a non truck driving job.
 
              
 
              9.  Claimant's prostate gland showed no evidence of 
 
         prostatitis before December 6, 1987.
 
              
 
              10.  That said gland had a existing dormant prostatitis 
 
         condition which was lit up, triggered and materially aggravated 
 
         by claimant's being bounced around in a truck he was driving as a 
 
         employee of the defendant employer on December 6, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              11.  Claimant has a reduction in earning capacity.
 
              
 
              12.  Claimant has incurred a healing period beginning 
 
         December 11, 1987, to and including March 10, 1988 amounting to 
 
         13 weeks and a second healing period beginning May 18, 1988 to 
 
         and including August 31, 1988 amounting to 15.143 weeks, both 
 
         totaling 28.143 weeks.
 
              
 
              13.  Claimant's gross weekly wages averages $143.00 per week 
 
         during his last employment with defendant employer.
 
         
 
              14.  Claimant's weekly benefit rate is $100.99 including two 
 
         exemptions.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury on December 6, 1987, arose out of and in 
 
         the course of claimant's employment.
 
         
 
              The dormant latent prostatitis condition of claimant was lit 
 
         up, triggered and materially aggravated by claimant's work 
 
         related injury on December 6, 1987 causing claimant to have a 
 
         nonbacterial prostatitis condition.
 
         
 
              Claimant incurred a healing period beginning December 11, 
 
         1987 to and including March 10, 1988 amounting to 13 weeks and a 
 
         second healing period beginning May 18, 1988 to and including 
 
         August 31, 1988 amounting to 15.143 weeks, both totaling 28.143 
 
         weeks payable at a weekly benefit rate of $100.99.
 
         
 
              Claimant has a 50 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay unto claimant healing period 
 
         benefits at the rate of one hundred and 99/100 dollars ($100.99) 
 
         for the periods beginning December 11, 1987 to and including 
 
         March 10, 1988 amounting to thirteen (13) weeks and a period 
 
         beginning May 18, 1988 to and including August 31, 1988 amounting 
 
         to fifteen point one four three weeks (15.143), both healing 
 
         periods totaling twenty eight point one four three weeks 
 
         (28.143).
 
         
 
              That defendants shall pay unto claimant two hundred fifty 
 
         (250) weeks of permanent partial disability benefits at the rate 
 
         of one hundred and 99/100 dollars ($100.99) beginning September 
 
         1, 1988.
 
         
 
              That defendants shall pay accrued weekly benefits in lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  The defendants previously paid thirty 
 
         one and one/seventh weeks (31 1/7) of benefits at the rate of one 
 
         hundred forty seven and 13/100 dollars ($147.13).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants shall pay interest on benefits awarded as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 25th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Attorney at Law
 
         108 N. Seventh St.
 
         P.O. Box 496 .
 
         Estherville, Iowa  51334
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P.O. Box 1680
 
         Ft. Dodge, Iowa  50501
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1100-1108-2206
 
                                            1803-53000
 
                                            Filed October 25, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN ROBINSON,
 
         
 
              Claimant,
 
                                                   File No. 872000
 
         vs.
 
         
 
         HOLIDAY EXPRESS CORP.,                   A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100
 
         
 
              Found claimant's injury arose out of and in the course of 
 
         his employment.
 
         
 
         1108
 
         
 
              Found claimant's disability causally connected to his 
 
         injury.
 
         
 
         2206
 
         
 
              Found claimant's dormant, latent, nonbacterial prostatitis 
 
         condition was lit up, triggered and materially aggravated by 
 
         claimant's being bounced around in a truck he was driving as an 
 
         employee of the defendant employer.
 
         
 
         1108
 
         
 
              Medical testimony opined that nonbacterial prostatitis is 
 
         often found in men who drive trucks, tractors or similar type of 
 
         equipment in their work.  Once condition becomes active, it can 
 
         last a lifetime.  Medical recommendation to claimant was to stop 
 
         driving a truck.
 
         
 
         1803
 
         
 
              Claimant awarded 50 percent industrial disability.  Claimant 
 
         has not worked since end of healing period.  Employer has not 
 
         considered alternative jobs claimant could do and is willing to 
 
         do, because employer "originally hired claimant as a truck driver 
 
         and for no other reason."  Claimant is 33 years old, has not 
 
         graduated from high school and has no GED.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         53000
 
         
 
              Rate determined to be $100.99.