BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         _________________________________________________________________
 
                   
 
         DAVID E. BARGLOF,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File Nos. 872409/840249
 
         G.W. "PETE" HOWE, INC.,  
 
                                                 A P P E A L
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         UNITED STATES FIDELITY and    
 
         GUARANTY COMPANY and     
 
         LIBERTY MUTUAL INSURANCE,     
 
                   
 
              Insurance Carriers, 
 
              Defendants.    
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 26, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendant employer and Liberty Mutual Insurance Company shall pay 
 
         the costs of the appeal, including the preparation of the hearing 
 
         transcript.
 
         Signed and filed this ____ day of September, 1992.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
         Mr. Ross H. Sidney
 
         Ms. Iris J. Post
 
         Mr. Mark Thomas
 
         Attorneys at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         Mr. Tito Trevino
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed September 11, 1992
 
                                          Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DAVID E. BARGLOF,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File Nos. 872409/840249
 
            G.W. "PETE" HOWE, INC.,  
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            UNITED STATES FIDELITY and    
 
            GUARANTY COMPANY and     
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carriers, 
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed November 
 
            26, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID E. BARGLOF,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  872409 & 840249
 
            G.W. "PETE" HOWE, INC.,       :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY and,   :
 
            GUARANTY COMPANY and          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by David E. 
 
            Bargloff, claimant; against G.W. "Pete" Howe, Inc., 
 
            employer; Liberty Mutual Insurance Company and United States 
 
            Fidelity and Guaranty Insurance Company, insurance carriers, 
 
            defendants; for benefits as the result of an alleged injury 
 
            on November 26, 1986, and another alleged injury on December 
 
            21, 1987.  A hearing was held in Storm Lake, Iowa, on May 
 
            17, 1990, and the case was fully submitted at the close of 
 
            the hearing.  Claimant was represented by Dick H. 
 
            Montgomery.  Defendant employer and Liberty Mutual Insurance 
 
            Company were represented by Tito Trevino.  Defendant 
 
            employer and United States Fidelity and Guaranty Company 
 
            were represented by Mark Thomas.  The record consists of the 
 
            testimony of David E. Bargloff, claimant; Roselma Bargloff, 
 
            claimant's mother; claimant's exhibits 1 through 12; 
 
            defendant Liberty Mutual's exhibits J, K and L; and 
 
            defendant USF & G's exhibits I through XVIII.  Defendants 
 
            objected to claimant's exhibit 4, pages 277, 291, 292, and 
 
            293.  Claimant resisted the objection.  These exhibits were 
 
            excluded from evidence because they were not timely 
 
            generated before the discovery cutoff date in the hearing 
 
            assignment order and prehearing order B.  Defendant USF & G 
 
            objected to claimant's exhibit 6.  Claimant resisted the 
 
            objection.  Claimant's exhibit 6 was excluded from evidence 
 
            because it is the first report of injury and Iowa Code 
 
            section 86.11 provides that a first report of injury cannot 
 
            be used as evidence in any case other then for the purpose 
 
            of proving notice under Iowa Code section 85.23.  Claimant 
 
            provided a brief description of disputes at the time of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            hearing.  The deputy ordered a transcript of the hearing.  
 
            All three attorneys submitted excellent posthearing briefs.  
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on November 26, 
 
            1986, which arose out of and in the course of employment and 
 
            whether claimant sustained another injury on December 21, 
 
            1987, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 Whether either injury was the cause of temporary or 
 
            permanent disability;
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits from either injury, and, if 
 
            so, the nature and extent of benefits to which he is 
 
            entitled; and
 
            
 
                 Whether claimant is entitled to medical benefits for 
 
            either injury.
 
            
 
                                 findings of fact
 
            
 
                             injury-November 26, 1986
 
            
 
                 It is determined that claimant sustained an injury to 
 
            both his left foot and his lower back on November 26, 1986, 
 
            that arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Claimant testified that he jumped off a moving machine 
 
            and injured both his left ankle and his lower back.  The 
 
            distance from the machine to the ground was approximately 42 
 
            inches (transcript page 64).  He landed stiff legged, his 
 
            left foot stuck in the mud, he twisted around and came to 
 
            rest lying on his back with his foot stuck in the mud (tr. 
 
            p. 69).  John W. Follows, M.D., an orthopedic surgeon, 
 
            initially treated his ankle and Rex J. Jones, D.C., a 
 
            chiropractor, initially treated claimant's back.  At first 
 
            the left ankle was determined to be a sprain and it was 
 
            treated with a cast, medications and time off work.  The low 
 
            back injury was considered to be a strain and it was treated 
 
            conservatively with chiropractic care.  Claimant returned to 
 
            work in February/March 1987 wearing an air cast and using a 
 
            cane (tr. p. 75).  He did not see Dr. Follows from January 
 
            14, 1987, until September 5, 1987.  He did not see Dr. Jones 
 
            from March 9, 1987, until October 2, 1987 (exhibit 5, pp. 2 
 
            and 16).
 
            
 
                 Claimant, Dr. Follows and Dr. Jones, all three, 
 
            indicated that claimant continued to have problems with both 
 
            his back and his foot even though he was not receiving 
 
            treatment.  Claimant returned to Dr. Follows' office on 
 
            September 25, 1987 (ex. 4, p. 250).  He returned to see Dr. 
 
            Jones on October 2, 1987 (ex. 4, p. 289).  On October 16, 
 
            1987, John Morrissey, M.D., a physician in Dr. Follows' 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            office, who believed that claimant had a possible avulsion 
 
            of his left distal fibula at the time of the injury on 
 
            November 26, 1986, found quite a bit of limitation of the 
 
            subtalar joint and x-rays confirmed the posterior facet of 
 
            the subtalar joint was markedly narrowed.  He concluded that 
 
            claimant had posttraumatic arthritis of the subtalar joint 
 
            and recommended surgery (ex. 4, pp. 250 & 251).  On November 
 
            24, 1987, James C. Johns, M.D., a physician in Dr. Follows' 
 
            office recommended a subtalar arthrodesis (ex. 4, p. 252).  
 
            
 
                 Claimant testified that on September 21, 1987, while 
 
            employed by employer when he slipped on some ice, fell to 
 
            the ground and further injured his left foot and his back 
 
            was also painful at that time (tr. pp. 76-79).
 
            
 
                 Claimant was admitted to the hospital and Dr. Follows 
 
            performed a subtalar fusion with an iliac graft on January 
 
            11, 1988 (ex. 4, p. 67).  At the time of his pre-operative 
 
            physical examination Ronald Creswell, M.D., traced 
 
            claimant's ankle problem to the injury of November 26, 1986, 
 
            when claimant's left foot imbedded itself in the mud and the 
 
            rest of his leg turned almost 180 degrees tearing a lot of 
 
            ligaments and muscles in the ankle (ex. 4, p. 65).
 
            
 
                 On February 9, 1988, while claimant was on crutches 
 
            recuperating from the left ankle surgery, he turned his body 
 
            to assist his son with a bottle of milk to feed a calf, when 
 
            his back went out completely, his left leg went completely 
 
            numb.  This is the frist time that Dr. Follows' records 
 
            reflect that he treated a back problem.  The pain was 
 
            unbearable and Dr. Follows sent an ambulance to bring him to 
 
            the hospital on February 10, 1988.  It was determined that 
 
            claimant had a herniated L4, L5 disc on the left and Dr. 
 
            Follows performed a diskectomy of L4, L5 on February 25, 
 
            1988 (ex. 4, pp. 2 & 3).  
 
            
 
                 Defendant employer and Liberty Mutual do not dispute 
 
            that claimant suffered an ankle strain on November 26, 1986, 
 
            for which he was returned to work in February/March 1987, 
 
            but deny that they are liable for either the back injury or 
 
            the recurring problems to the back and the ankle in 
 
            September and October of 1987 which resulted in the ankle 
 
            fusion and the L4, L5 lumbar diskectomy.
 
            
 
                 Dr. Jones stated on March 21, 1988, "In my opinion his 
 
            back problems and subsequent surgical interventions are a 
 
            result of the injuries he received on his accident of 
 
            November 26, 1986." (ex. 4, p. 282).  In his first 
 
            deposition, on August 10, 1988, Dr. Jones testified that on 
 
            November 26, 1986, claimant jumped and fell causing foot, 
 
            ankle and back injuries.  He treated claimant primarily for 
 
            the low back injury (ex. 2, p. 13).  Dr. Jones repeated that 
 
            in his opinion the back problems and subsequent surgical 
 
            intervention was caused by the injury of November 26, 1986 
 
            (ex. 2, pp.  18 & 19).  Claimant's only prior low back 
 
            problem occurred a year and four months prior to that and he 
 
            was symptom free after two or three treatments.  The 
 
            problems that Dr. Jones treated claimant for after November 
 
            26, 1986, did not exist prior to that date (ex. 2, pp. 29 & 
 
            20).  Claimant  did not report the December 21, 1987, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            alleged back injury to Dr. Jones (ex. 2, pp. 19, 26 & 33).  
 
            Dr. Jones suspected disk involvement two or three months 
 
            after the injury on November 26, 1986, which was confirmed 
 
            in his mind later on October 28, 1987, when claimant 
 
            developed severe pain in his left leg (ex. 2, pp. 21 & 31).  
 
            Dr. Jones repeated that prior to November 26, 1986, claimant 
 
            never really had a serious problem with his back (ex. 2, pp. 
 
            30 & 33).  Dr. Jones testified that claimant's back problems 
 
            were the direct result of the injury on November 26, 1986 
 
            (ex. 2, pp. 31 & 32).  
 
            
 
                 In a second deposition given on September 13, 1988, Dr. 
 
            Jones stated that the injury of November 26, 1986, was the 
 
            cause of claimant's back injury.  Dr. Jones testified, "And 
 
            the underlying cause of this whole problem was the injury 
 
            which occurred in November of 1986?" "Yes." (ex. 2, p. 35).  
 
            
 
                 Dr. Jones explained the basis for his opinion as 
 
            follows:
 
            
 
                 Q.  How does it go back to November of '86?
 
            
 
                 A.  The patient had been symptomfree [sic] to my 
 
                 knowledge before that accident.  He'd been 
 
                 symptomfree [sic] for almost two years, I 
 
                 understand it.  Had done all the work that he 
 
                 could do, you know, had been farming, had been 
 
                 working on the sludge machine, with no back 
 
                 problems.  And then after the injury, one, with 
 
                 the impaired walking on the ankle will definitely 
 
                 aggravate a low back problem.  And it's my belief 
 
                 that the trauma when he landed probably bulged the 
 
                 disk a little bit or tore it some and then the 
 
                 continual trying to walk on a bad ankle 
 
                 continually kept it reaggravated.  And finally it 
 
                 just ruptured totally through.
 
            
 
            (exhibit 2, page 36)
 
            
 
                 The incident in the milk barn just happened to be when 
 
            the herniation took place.  Dr. Jones said, "That's probably 
 
            when it finally broke through." (ex. 2, p. 37).
 
            
 
                 Claimant testified that he complained about his back 
 
            several times to Dr. Follows and told him that he was being 
 
            treated by Dr. Jones.  Claimant further testified that Dr. 
 
            Follows did not think the back injury was significant 
 
            because a sore back would be natural and consistent with the 
 
            ankle injury he sustained on November 26, 1986.  Dr. 
 
            Follows' notes first mention the back injury on February 10, 
 
            1987, when his symptoms became intolerable.  In an office 
 
            note dated April 2, 1990, Dr. Follows stated, "It seems as 
 
            though he had probably a herniated disc ever since the fall 
 
            and herniated it further when he twisted his back while on 
 
            crutches.  This seems to track well with Dr. Nelson's 
 
            observations."  (ex. 4, p. 279).
 
            
 
                 With respect to the ankle, in his deposition, given on 
 
            July 11, 1988, Dr. Follows stated:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    The injury itself could be very similar to an 
 
                 ankle sprain but instead of damaging the ankle 
 
                 ligaments it damaged the surface of these joints 
 
                 of the subtalar joint, caused them to wear out 
 
                 abnormally fast to develop what we call 
 
                 post-traumatic [sic] arthritis.  In other words 
 
                 arthritis as a result of an injury.
 
            
 
            (exhibit 1, page 10)
 
            
 
                 When asked if the ankle problem was caused by the 
 
            injury of November 26, 1986, when claimant fell off or 
 
            jumped off the sludge applicator, Dr. Follows answered, "It 
 
            appears to me virtually a certainty that his ankle problems 
 
            are due to that injury."  (ex. 1, p. 13).  
 
            
 
                 With respect to the back, Dr. Follows stated that based 
 
            on the history related to him by claimant, the history in 
 
            the medical records that he received from Dr. Jones, and the 
 
            medical services which he himself performed, that he had 
 
            formed an opinion on causal connection.  Dr. Follows stated, 
 
            "Yes.  Based on that information it appears to me that his 
 
            back problems and therefore his leg problems date back to 
 
            his injury in November of 1986."  (ex. 1, p. 15).  Dr. 
 
            Follows added that claimant developed the back problems at 
 
            that time and that they never completely resolved, but 
 
            gradually developed into the back pain and leg pain which 
 
            led to his surgery (ex. 1, p. 15). 
 
            
 
                 With respect to the back, Dr. Follows discounted the 
 
            injury on December 21, 1987.  He stated, "I think that just 
 
            aggravated the problem that was already there."  (ex. 1, p. 
 
            16).  Dr. Follows continued, "In this case most of the blame 
 
            seems to go with the November 1986 injury which is when his 
 
            back pain started.  It never went away.  And then with 
 
            subsequent events it evolved into a herniated disk with pain 
 
            down his leg." (ex. 1, p. 16).  Dr. Follows further 
 
            testified:
 
            
 
                 We're dealing with what caused the damage to the 
 
                 disk.  And as I said before again it probably 
 
                 wasn't altogether one episode.  But since we are 
 
                 forced to try and incriminate something in this, 
 
                 the injury that he had with this loader in 
 
                 November of 1986 seems to be what brought on the 
 
                 greatest number -- the greatest amount of increase 
 
                 in his back pain.
 
            
 
            (exhibit 1, page 33).
 
            
 
                 With respect to the back, Dr. Follows admitted that a 
 
            decision on causal connection should be weighted more 
 
            heavily by what Dr. Jones says (ex. 1, p. 33), but, "My 
 
            opinion is that it - the critical episode seemed to be the 
 
            November '86 episode." (ex. 1, p. 34).  
 
            
 
                 With respect to the ankle, Dr. Follows again discounted 
 
            the reinjury which occurred on December 21, 1987.  He 
 
            testified that claimant had posttraumatic arthritis as a 
 
            product from the injury which occurred on November 26, 1986.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            When the December 21, 1987, incident occurred, the arthritis 
 
            was already there.  When claimant reinjured it, he realized 
 
            he was going to have to do something about it (ex. 1, pp. 42 
 
            & 43).  Even before December 21, 1987, both Dr. Morrissey 
 
            and Dr. Johns had told claimant he needed surgery on his 
 
            ankle (ex. 4, pp. 251 & 252). 
 
            
 
                 Harold A. VanHofwegen, M.D., a personal physician of 
 
            claimant and the physician who examined him prior to the 
 
            diskectomy stated in a letter dated April 5, 1988, "I feel 
 
            that this disc herniation probably occurred back at the time 
 
            of his injury in November 1986 since he has had symptoms of 
 
            sciatic neuritis dating back to that time.  This injury was 
 
            aggravated in February 1988." (ex. 4, p. 294).  
 
            
 
                 The opinions of Dr. Jones, Dr. Follows and Dr. 
 
            VanHofwegen are not controverted, contradicted, rebutted, or 
 
            refuted by any other medical evidence in the record.
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury to his left ankle and his lumbar spine on November 
 
            26, 1986, which arose out of and in the course of employment 
 
            with employer and necessitated the left subtalar fusion and 
 
            the L4, L5 diskectomy.
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 It is determined that the injury of November 26, 1986, 
 
            was the cause of temporary disability and that claimant is 
 
            entitled to 53.143 weeks of healing period benefits from 
 
            defendant employer and Liberty Mutual.
 
            
 
                 The evidence of causal connection between the 
 
            employment and the injury in the foregoing section also 
 
            applies to the causal connection between the injury and 
 
            temporary disability.  In addition, the evidence of causal 
 
            connection between the injury and permanent disability which 
 
            will be presented in the following section is further 
 
            evidence of causal connection of this injury to temporary 
 
            disability.
 
            
 
                 There are two periods of temporary disability for which 
 
            employer and Liberty Mutual are liable.  For the first 
 
            period of temporary disability, claimant's entitlement 
 
            begins on the date of the injury [Iowa Code section 
 
            85.34(1)] and continues until the time that claimant 
 
            returned to work on a full-time basis on March 1, 1987.  
 
            This is a period of 13.714 weeks.  Although claimant 
 
            returned to employment in February of 1987, he did not work 
 
            full time until March 1, 1987 (tr. pp. 74-76, 121).
 
            
 
                 From the remarks of counsel for both claimant and 
 
            Liberty Mutual, this period of entitlement does not seem to 
 
            be in dispute, nevertheless, the prehearing report stated 
 
            that claimant's entitlement to temporary disability was an 
 
            issue in this case and there was no stipulation to this 
 
            period of time and therefore, a determination on this point 
 
            is necessitated at this time.  Defendant employer and 
 
            Liberty Mutual are entitled to a credit for the temporary 
 
            total disability benefits and the temporary partial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability benefits and any wages paid to claimant during 
 
            this period of time even though this was not stipulated to 
 
            on the prehearing report or at the time of the hearing.  
 
            
 
                 The second period of time for which claimant is 
 
            entitled to healing period benefits from employer and 
 
            Liberty Mutual is from the date of the ankle surgery on 
 
            January 11, 1988, until October 14, 1988, which is the date 
 
            following the date on which Dr. Follows gave a permanent 
 
            impairment rating for the back and the ankle (ex. 4, p. 
 
            275).  This is a period of 39.429 weeks.
 
            
 
                 The combination of 13.714 weeks of temporary disability 
 
            for the first period of healing and 39.429 weeks for the 
 
            second period of temporary disability for healing totals 
 
            53.143 weeks.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of November 26, 1986, 
 
            was the cause of permanent disability, that claimant has 
 
            sustained a 55 percent industrial disability to the body as 
 
            a whole and that claimant is entitled to 275 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Dr. Follows testified, "We used bone from his pelvis, 
 
            the ilium of his pelvis on the left, to place bone graft 
 
            into the subtalar joint after sort of preparing a bed for 
 
            this bone graft, put in two screws to hold it; and put him 
 
            in a cast." (ex. 1, p. 10).  Dr. Follows further testified 
 
            that even though claimant has done very well, he still gets 
 
            pain going down into his hip from his back and even though 
 
            his foot is solidly fused, there is still tenderness on the 
 
            outside of his foot and he is limited in the amount of time 
 
            that he can be on his feet and how active he can be (ex. 1, 
 
            p. 13).  Dr. Follows said claimant would not be able to 
 
            return to his job as a mechanic, truck driver and heavy 
 
            equipment operator for employer (ex. 1, p. 13).  Thus, 
 
            claimant is foreclosed from his employment with this 
 
            employer for whom he had worked for approximately five years 
 
            from 1981 to 1986.  Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218, 220 (Appeal Decision January 30, 1979); Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
            Report 282 (1984).
 
            
 
                 In his letter of October 13, 1988, Dr. Follows stated, 
 
            "He should be doing no job requiring heavy lifting, pushing, 
 
            pulling, or repeated bending and this certainly rules out 
 
            his job with Pete Howe.  His final disability rating is 20 
 
            percent loss of function of his left foot plus 15 percent 
 
            loss of whole body function because of his back." (ex. 2, p. 
 
            275).  In his deposition, Dr. Follows added that claimant 
 
            should probably lift no more than 25 pounds and that he 
 
            should not perform extensive walking or walk on rough ground 
 
            (ex. 1, pp. 18, 21 & 22).  Thus, claimant is reduced from an 
 
            unlimited capacity to perform very heavy labor to only 
 
            performing either light work or very light medium work which 
 
            means that claimant is foreclosed from substantial portions 
 
            of the competitive labor market -- the jobs which are 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            easiest to obtain and frequently pay good wages.  Dr. 
 
            Follows gave his deposition on July 11, 1988, and estimated 
 
            that claimant would attain maximum medical/physical recovery 
 
            in approximately two or three months, which would be October 
 
            1988.
 
            
 
                 The doctor stated that the permanent impairment ratings 
 
            which he determined were caused by these two injuries (ex. 
 
            1, p. 19).  
 
            
 
                 He did not believe that claimant was a malingerer, but 
 
            on the contrary, he tends to be a hard working, aggressive 
 
            physical person and its been hard for claimant to admit his 
 
            physical limitations at all (ex. 1, pp. 19 & 20).  Dr. 
 
            Follows stated claimant needs to be slowed down rather than 
 
            speeded up (ex. 1, p. 25).  Dr. Follows explained that the 
 
            subtalar joint fusion eliminated the side-to-side motion of 
 
            claimant's left ankle (ex. 1, p. 23).  Dr. Follows said that 
 
            he was unable to apportion any of claimant's disability to 
 
            the December 21, 1987, incident and indicated that all of 
 
            the disability was attributable to the November 26, 1986, 
 
            injury (ex. 1, pp. 41 & 42).
 
            
 
                 Using the Guides to the Evaluation of Permanent 
 
            Impairment, section edition, Dr. Jones, on August 29, 1988, 
 
            made a detailed evaluation of the left ankle and back 
 
            impairments and arrived at a combined impairment of 29 
 
            percent of the whole person (ex. 4, pp. 280 & 281).  If Dr. 
 
            Follows' impairment ratings were converted and combined they 
 
            would result in a 20 percent impairment to the body as a 
 
            whole. (Guides to the Evaluation of Permanent Impairment, 
 
            third edition, page 58, 65 and 246).
 
            
 
                 Dr. Jones verified that the impairment which he rated 
 
            was caused by the injury of November 26, 1986 (ex. 3, pp. 23 
 
            & 28-32).
 
            
 
                 Thus, both Dr. Follows and Dr. Jones have established 
 
            that claimant sustained two very serious and disabling 
 
            injuries on November 26, 1986, which resulted in a subtalar 
 
            fusion of the left ankle and a diskectomy of the lumbar 
 
            spine at L4, L5.
 
            
 
                 Dr. VanHofwegen testified at his deposition on April 
 
            24, 1989, that the injury of November 26, 1986, was the 
 
            cause of claimant's back problem (ex. 10, pp. 23, 19, 30, & 
 
            31).  He also said that claimant was foreclosed from his 
 
            work as a heavy machine mechanic or other heavy physical 
 
            activity and that he should find a job with no prolonged 
 
            standing, driving or lifting over 10 pounds (ex. 10, 
 
            deposition ex. 8).
 
            
 
                 Claimant's industrial disability is increased because 
 
            it occurred near the peak of his earnings career at age 39 
 
            and therefore, is more serious than if it had occurred when 
 
            he was either younger or older.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979); Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., file numbers 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            782670 & 805200 (Appeal Decision 1989).
 
            
 
                 At age 39 and in his early 40's claimant is capable of 
 
            retraining and did complete a course of agribusiness at the 
 
            community college.  Retraining is an expensive matter, even 
 
            though claimant had Pell Grants, food stamps and assistance 
 
            from his parents, primarily because he lost two years of 
 
            income while obtaining this retraining, not to mention the 
 
            other expenses which he personally incurred in order to 
 
            obtain the training.
 
            
 
                 Claimant testified that he was earning $8.50 per hour 
 
            at the time of the injury which would produce about $17,680 
 
            per year based upon a 40-hour week (tr. p. 58).  Based on 
 
            agency expertise injured employees like claimant are 
 
            reemployed at approximately $4 or $5 per hour and would 
 
            sustain an approximate 40 percent actual wage loss.  
 
            Claimant has had no earnings from outside full-time 
 
            employment since December 21, 1987.  His few attempts to 
 
            obtain work were discouraged because of his work-related 
 
            injuries (ex. II, p. 21).  He did perform a part-time job 
 
            with the ASCS office while he attended college and earned 
 
            $1,942 (tr. p. 118).  He graduated from Iowa Lakes Community 
 
            College on the evening of his hearing, May 17, 1990, and 
 
            only then became available to seek full-time work.  Claimant 
 
            has only begun to search for employment by prepearing 
 
            resumes and sending them out (tr. p. 98).
 
            
 
                 There is work that claimant can do within his 
 
            limitations, however, it is greatly restricted in the 
 
            competitive labor market and he cannot perform most of his 
 
            previous employments as when he operated his own 
 
            construction company for 11 years.  
 
            
 
                 Claimant's understanding of his restrictions is that he 
 
            is not to perform any heavy, manual lifting; no prolonged 
 
            standing; no prolonged sitting; no twisting, pushing or 
 
            shoving; or lifting more than 20 pounds (tr. p. 97).  
 
            Claimant testified that if he steps on a rock and twists his 
 
            ankle sideways he gets the same sensation that occurs when 
 
            you strike your crazy bone.  It sends a shock up through his 
 
            whole body if his ankle is twisted in a certain fashion (tr. 
 
            pp. 100 & 101).  
 
            
 
                 Roselma Bargloff, claimant's mother, testified that she 
 
            and her husband have assisted claimant a great deal with 
 
            their time, work and money.  She testified that claimant can 
 
            take an awful lot of pain and that since childhood he has 
 
            been a person who has wanted to work, has worked hard and 
 
            thrives on work (tr. pp. 188 & 189).  She said that claimant 
 
            is unable to farm like he used to, he cannot run tractors 
 
            like he used to, he cannot hitch-up machinery like he used 
 
            to, he cannot grind feed any longer, and he cannot do 
 
            mechanical work because he cannot bend over the fender 
 
            anymore.  One day they were planting trees and claimant put 
 
            his left foot on a spade and it must have irritated the 
 
            screws in his foot and he just about fainted right there 
 
            (tr. pp. 187 & 188).
 
            
 
                 Robert Webb, a private investigator hired by defendant 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Liberty Mutual, testified by deposition on May 11, 1988, 
 
            that he observed claimant from defendant employer's premises 
 
            next door and made a video tape of his activities on April 
 
            12, 1988 ( ex. VI, pages 3-10).  He observed claimant 
 
            getting on and off of a tractor, connecting and 
 
            disconnecting farm equipment, disking a field and throwing 
 
            some straw for his animals to eat (USF & g ex, VI, pages 
 
            10-13).  Claimant did have a cast on his foot and walked 
 
            with a limp. (ex. VI, p. 14).
 
            
 
                 Although surveillance was performed on claimant, it 
 
            only disclosed that he hooked and unhooked the implements 
 
            from his tractor and drove the tractor for about two hours.  
 
            Dr. Follows testified that he encouraged claimant to do what 
 
            he could do within his limitations (ex. 1, pp. 24 & 25).  
 
            There was no evidence that claimant could farm or perform 
 
            farming work on a full-time basis.  At the time of the 
 
            surveillance, claimant was using his crutches.
 
            
 
                 Claimant is foreclosed from most of his former 
 
            employments of driving a ready mix truck, driving a 
 
            semi-tractor trailer over-the-road, farming and operating 
 
            his own construction business (tr. pp. 56 & 93).
 
            
 
                 There is no evidence that any of the defendants 
 
            assisted claimant in his vocational rehabilitation effort.
 
            
 
                 Wherefore, based upon (1) claimant's age of 39 years; 
 
            (2) his high school education and two years of agribusiness 
 
            college; (3) that fact that he is foreclosed from all prior 
 
            employments; (4) the fact that he is foreclosed from his 
 
            employment with this employer; (5) the fact that he is 
 
            reduced from very heavy work to basically light work or 
 
            light medium work on account of the 25-pound weight lifting 
 
            restriction; (6) the fact that claimant is restricted from 
 
            prolonged standing, sitting or walking; (7) the fact that 
 
            claimant has sustained substantial physical/functional 
 
            impairment ratings of approximately 20 and 29 percent to the 
 
            body as a whole; (8) the fact that claimant has a fused left 
 
            ankle which is still painful and irritable and which has no 
 
            side to side motion; (9) the fact that claimant has had a 
 
            lumbar diskectomy of L4, L5 and residual pain in his hip; 
 
            (10) based upon all of the facts in this case; (11) based on 
 
            all of factors used to determine industrial disability; and 
 
            (12) applying agency expertise [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 55 percent industrial disability to the body as 
 
            a whole and is entitled to 275 weeks of permanent partial 
 
            disability benefits.
 
            
 
                                 medical benefits
 
            
 
                 It is determined that the injury of November 26, 1986, 
 
            was the cause of all of claimant's medical expenses for both 
 
            his back and his left foot.  It is further determined that 
 
            the fees charged are fair and reasonable and the medical 
 
            services were all reasonable for the work injury of November 
 
            26, 1986.
 
            
 
                 Claimant is entitled to $13,395.05 of unpaid medical 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            expenses as shown on claimant's exhibit 5, page 1 and that 
 
            defendant employer and Liberty Mutual are liable for all of 
 
            these  expenses.  There was no evidence that the injury of 
 
            December 21, 1987, caused any medical expense.  Dr. Follows 
 
            made no charge for his consultation on that date (ex. 4, p. 
 
            16; ex. 5, p. 264).  Claimant did not see or report this 
 
            incident to Dr. Jones at all.
 
            
 
                 Claimant is entitled to $212.84 in medical mileage as 
 
            shown on claimant's exhibit 12 plus $94.50 in medical 
 
            mileage for nine trips to the back clinic, a distance of 50 
 
            miles at $.21 per mile.  The total medical mileage due to 
 
            claimant is $307.34.  ($212.84 plus $94.50) (tr. pp. 98, 
 
            102, 104).
 
            
 
                 In conclusion, defendant employer and Liberty Mutual 
 
            are responsible for all of claimant's medical expenses for 
 
            both his back injury and his left foot injury.
 
            
 
                             injury-december 21, 1987
 
            
 
                 It is determined that claimant sustained an injury on 
 
            December 21, 1987, to his left foot and ankle only (not his 
 
            back) which was an aggravation of his preexisting injury on 
 
            November 26, 1986, based on the testimony of Dr. Follows 
 
            summarized above.
 
            
 
                 Claimant told a security guard at the place of accident 
 
            that he probably hurt his foot.  He reported to employer 
 
            that he had hurt his foot.  Claimant only mentioned his foot 
 
            to Dr. Follows the following day.  Dr. Follows stated in his 
 
            deposition that claimant had already sustained a 
 
            considerable problem with his ankle and he was scheduled for 
 
            surgery prior to the December 21, 1987, injury.
 
            
 
               causal connection-entitlement-temporary disability 
 
            
 
                 It is determined that the injury of December 21, 1987, 
 
            was the cause of temporary disability from the date of the 
 
            injury on December 21, 1987, until the date of claimant's 
 
            surgery for his ankle on January 11, 1988, a period of three 
 
            weeks.  Claimant had been working up until December 21, 
 
            1987, when he reinjured his left ankle and Dr. Follows took 
 
            him off work until the time of the previously scheduled 
 
            ankle fusion on January 11, 1988 (ex. 1, pp. 25 & 26; ex. 4, 
 
            p. 263).  Therefore, defendant employer and USF & G are 
 
            liable for the temporary disability benefits during this 
 
            three week period.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of December 21, 1987, 
 
            was not the cause of permanent disability and claimant is 
 
            not entitled to any permanent disability benefits for this 
 
            injury.  As shown above, Dr. Follows and Dr. Jones 
 
            attributed all of claimant's permanent disability to the 
 
            injury of November 26, 1986.
 
            
 
                                 medical benefits
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 It is determined that the injury of December 21, 1987, 
 
            was not the cause of any medical expense.  Claimant reported 
 
            the injury to Dr. Follows who made no charge for this 
 
            consultation.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury on November 26, 1986, 
 
            to his back and left foot which arose out of and in the 
 
            course of employment with employer.  Iowa Code section 
 
            85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury of November 26, 1986, was the cause of 
 
            temporary disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 53.143 weeks of healing 
 
            period benefits for the injury of November 26, 1986.
 
            
 
                 That the injury of November 26, 1986, was the cause of 
 
            permanent disability.  Bodish, 257 Iowa 516, 133 N.W.2d 867; 
 
            Lindahl, 236 Iowa 296 18 N.W.2d 607.
 
            
 
                 That claimant sustained a 55 percent industrial 
 
            disability to the body as a whole and is entitled to 275 
 
            weeks of permanent partial disability benefits caused by the 
 
            injury on November 26, 1986.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant sustained an injury on December 21, 1987, 
 
            in the nature of an aggravation of his preexisting injury on 
 
            November 26, 1986, which arose out of and in the course of 
 
            employment with employer.  Iowa Code section 85.3(1); 
 
            McDowell, 241 N.W.2d 904; Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 That the injury of December 21, 1987, was the cause of 
 
            temporary disability from December 21, 1987 to January 11, 
 
            1988, a period of three weeks.  Bodish, 257 Iowa 516, 133 
 
            N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607.
 
            
 
                 That claimant is entitled to three weeks of temporary 
 
            total disability benefits for this period of time due to the 
 
            injury of December 21, 1987.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant employer and Liberty Mutual pay to 
 
            claimant thirteen point seven one four (13.714) weeks of 
 
            temporary disability benefits at the rate of two hundred 
 
            thirty-four and 59/100 dollars ($234.59) per week in the 
 
            total amount of three thousand two hundred seventeen and 
 
            17/100 dollars ($3,217.17) for the period from November 26, 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            1986 to March 1, 1987, commencing on November 26, 1986.
 
            
 
                 That defendant employer and USF & G pay to claimant 
 
            three (3) weeks of temporary disability benefits at the rate 
 
            of two hundred three and 86/100 dollars ($203.86) per week 
 
            in the total amount of six hundred eleven and 58/100 dollars 
 
            ($611.58) for the period from December 21, 1987 to January 
 
            11, 1988, commencing on December 21, 1987.
 
            
 
                 That defendant employer and Liberty Mutual pay to 
 
            claimant thirty-nine point four two nine (39.429) weeks of 
 
            temporary disability benefits at the rate of two hundred 
 
            thirty-four and 59/100 dollars ($234.59) per week in the 
 
            total amount of nine thousand two hundred forty-nine and 
 
            65/100 dollars ($9,249.65) for the period from January 11, 
 
            1988 to October 14, 1988, commencing on January 11, 1988.
 
            
 
                 That defendant employer and Liberty Mutual pay to 
 
            claimant two hundred seventy-five (275) weeks of permanent 
 
            partial disability benefits at the rate of two hundred 
 
            thirty-four and 59/100 dollars ($234.59) per week in the 
 
            total amount of sixty-four thousand five hundred twelve and 
 
            25/100 dollars ($64,512.25) for a 55 percent industrial 
 
            disability to the body as a whole commencing on October 14, 
 
            1988.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 That defendant employer and Liberty Mutual are entitled 
 
            to a credit for the temporary disability benefits and wages 
 
            paid to claimant during the period from November 26, 1986 to 
 
            March 1, 1987.
 
            
 
                 That in addition defendant employer and Liberty Mutual 
 
            are entitled to a credit in the amount of fifteen thousand 
 
            ($15,000) paid to claimant pursuant to the order of Deputy 
 
            Industrial Commissioner Larry Walshire pursuant to Iowa Code 
 
            section 85.21 dated November 14, 1988, and as stipulated to 
 
            by the parties.
 
            
 
                 That defendant employer and USF & G are entitled to a 
 
            credit for twenty (20) weeks of benefits paid to claimant at 
 
            the rate of two hundred three and 86/100 dollars ($203.86) 
 
            per week in the total amount of four thousand seventy-seven 
 
            and 20/100 dollars ($4,077.20) as stipulated to by the 
 
            parties.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendant employer and Liberty Mutual pay to 
 
            claimant or the provider of medical services thirteen 
 
            thousand three hundred ninety-five and 05/100 dollars 
 
            ($13,395.05) in unpaid medical bills plus any charges for 
 
            late payment of these bills.
 
            
 
                 That defendant employer and Liberty Mutual pay to 
 
            claimant three hundred seven and 34/100 dollars ($307.34) of 
 
            total medical mileage.
 
            
 
                 That claimant's costs are charged to defendant employer 
 
            and Liberty Mutual pursuant to rule 343 IAC 4.33.
 
            
 
                 That the costs of the attendance of the court reporter 
 
            at hearing and the transcript of hearing is to be equally 
 
            divided between Liberty Mutual and USF & G pursuant to Iowa 
 
            Code section 86.19(1) and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dick H. Montgomery
 
            Attorney at Law
 
            Professional Bldg
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            PO Box 7038
 
            Spencer, IA  51301
 
            
 
            
 
            
 
            Mr. Ross H. Sidney
 
            Ms. Iris J. Post
 
            Mr. Mark Thomas
 
            Attorneys at Law
 
            2222 Grand Ave
 
            PO Box 10434
 
            Des Moines, IA  50306
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            PO Box 1680
 
            Ft. Dodge, IA  50501
 
            
 
            
 
 
         
 
         Page   1
 
         
 
                                       51107 51108.50 51401 51402.20 
 
                                       51402.30 51802 51803 52501 51700
 
                                       Filed November 26, 1991
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         DAVID E. BARGLOF,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       : File Nos.  872409 & 840249
 
         G.W. "PETE" HOWE, INC.,       :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         UNITED STATES FIDELITY and,   :
 
         GUARANTY COMPANY and          :
 
         LIBERTY MUTUAL INSURANCE,     :
 
                                       :
 
              Insurance Carriers,      :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51107 51108.50 51401 51402.20 51402.30
 
         Claimant sustained a work injury to his left foot and ankle and 
 
         his lower back when he fell or jumped from a moving machine and 
 
         landed stiff legged on his left leg in the mud and his body 
 
         twisted around and came to rest 180 degrees turned on his left 
 
         ankle.  The second injury was found to be an aggravation of the 
 
         first injury.
 
         
 
         51802
 
         Claimant awarded two periods of temporary disability for two 
 
         medically established times off work from the first injury and 
 
         three weeks off from the second injury/aggravation.
 
         
 
         51083
 
         Claimant awarded 55 percent industrial disability from the first 
 
         injury based on 20 percent and 29 percent physical impairment 
 
         ratings, foreclosed from current and past employments, reduced to 
 
         light or light medium work from unlimited very heavy work, ankle 
 
         fusion with no remaining side to side motion, diskectomy at L4, 
 
         L5, age 39, and off work two years for retraining without 
 
         assistance from defendants.  No permanent benefits awarded for 
 
         the second injury/aggravation.
 
         
 
         52501 51700
 
         Claimant awarded $13,702.39 in unpaid medical expenses from the 
 
         first injury.  Second injury/aggravation incurred no medical 
 
         expense.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER L. MUILENBERG,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 872566
 
            PRINCE MANUFACTURING CO.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA COMMERCIAL INSURANCE    :
 
            DIVISION,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            statement of the case
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  
 
            findings of fact
 
            
 
                 The findings of fact of the decisions of the deputies 
 
            filed December 20, 1989 and March 18, 1991 are affirmed and 
 
            adopted.
 
            conclusions of law
 
            
 
                 The conclusions of law in the deputies' proposed 
 
            decisions are affirmed and adopted with the following 
 
            modification as it relates to claimant's rate.
 
            
 
                 An error was made in calculating claimant's rate.  The 
 
            weeks of August 1, 1987, July 11, 1987 and February 28, 
 
            1987, are not representative of claimant's earnings and 
 
            should be excluded from the calculation of claimant's 
 
            earnings.  Claimant was on sick leave three days during the 
 
            week of August 1, 1987, on workers' compensation two days 
 
            during the week of July 11, 1987 and on workers' 
 
            compensation during the week of February 28, 1987.  The 
 
            weeks ending January 24, 1987, January 17, 1987 and January 
 
            10, 1987 are included as weeks representing claimant's 
 
            earnings.  
 
            
 
                 Week Ending              Regular Earnings    Incentive 
 
            Pay
 
            
 
                 January 24, 1987         $364.80             
 
                 $67.47
 
            
 
                 January 17, 1987         $364.80             
 
                 $65.98
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 January 10, 1987         $364.80             
 
                 $67.72
 
            
 
                 The actual thirteen weeks to be used in calculating 
 
            claimant's rate are set forth in the deputy's decision of 
 
            December 20, 1989 excluding August 1, 1987, July 11, 1987 
 
            and February 28, 1987.  The weeks of January 24, 1987, 
 
            January 17, 1987 and January 10, 1987 are included to 
 
            calculate claimant's earnings.  Thirteen weeks equal 
 
            $5,619.60.  This amount divided by thirteen and rounded to 
 
            the nearest dollar is $432.00 which represents claimant's 
 
            average gross weekly earnings.  When injured, claimant was 
 
            married and had three exemptions.  Claimant's rate of weekly 
 
            compensation is $274.60.
 
            
 
                 WHEREFORE, the decisions of the deputies are affirmed 
 
            and modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant temporary total 
 
            disability benefits from his injury through May 6, 1988 at 
 
            the rate of two hundred and sixty-four and 98/100 dollars 
 
            ($274.60) per week.
 
            
 
                 That defendants shall receive credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Claimant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Paul W. Deck, Sr.
 
            Attorney at Law
 
            635 Frances Building
 
            Sioux City, Iowa 51101
 
            
 
            Mr. Charles T. Patterson
 
            Ms. Judith Ann Higgs
 
            Attorneys at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-3000
 
            Filed December 23, 1991
 
            Byron K. Orton
 
            DRR
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER L. MUILENBERG,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 872566
 
            PRINCE MANUFACTURING CO.,     :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA COMMERCIAL INSURANCE    :
 
            DIVISION,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3000
 
            Held that the weeks of August 1, 1987, July 11, 1987 and 
 
            February 28, 1987, are not representative of claimant's 
 
            earnings and should be excluded from the calculation of 
 
            claimant's earnings.  Claimant was on sick leave three days 
 
            during the week of August 1, 1987, on workers' compensation 
 
            two days during the week of July 11, 1987 and on workers' 
 
            compensation during the week of February 28, 1987.  Three 
 
            weeks are substituted as weeks representing claimant's 
 
            earnings.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. MUILENBERG,
 
         
 
              Claimant,                              File No. 872566
 
         vs.
 
                                                 A R B I T R A T I O N
 
         PRINCE MANUFACTURING CO.,
 
                                                    D E C I S I O N 
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                       DEC 20 1989
 
         AETNA COMMERCIAL INSURANCE
 
         DIVISION,                                 INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Roger L. Muilenberg, against his employer, Prince Manufacturing 
 
         Company, and its insurance carrier, Aetna Commercial Insurance 
 
         Division, to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury sustained on December 
 
         15, 1987. This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Sioux City, Iowa, on September 
 
         28, 1989.  A first report of injury was filed on January 4, 1988. 
 
         Pursuant to the stipulations in the prehearing report submitted 
 
         by the parties, defendants have paid claimant $11,018.40 in 
 
         workers' compensation benefits prior to hearing.  Claimant's 
 
         claim for permanent partial disability and payment of medical 
 
         costs pursuant to section 85.27 were bifurcated from this initial 
 
         proceeding at time of pretrial conference on March 7, 1989.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of Richard Sturgeon, Henry M. Gilbertson, 
 
         Michael J. Bohr, and Byron Orr as well as of claimant's exhibit A 
 
         and of defendants' exhibits 1 through 52, each as identified in 
 
         the respective exhibit list.  Both parties submitted briefs.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties stipulated that claimant 
 
         did receive an injury which arose out of and in the course of his 
 
         employment on December 15, 1987.  Defendants in their brief and in 
 
         their written description of disputes state they agree claimant 
 
         had an incident at work, but argue that such does not rise to the 
 
         level of an injury under our workers' compensation laws.  We find 
 
         the oral and written stipulations at hearing controlling.  
 
                                                 
 
                                                          
 
         However, we believe this discrepancy in form of stipulation has 
 
         little actual consequence in this matter.  The issue raised can 
 
         also be discussed as regards whether causation exists between 
 
         claimant's present complaints and his work incident.
 
         
 
              Issues remaining to be decided are:
 
         
 
              1.  Whether a causal relationship exists between the alleged 
 
         injury and the claimed disability;.
 
         
 
              2.  Whether claimant is entitled to either temporary total 
 
         disability or healing period benefits beyond those already paid; 
 
         and,
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a 46-year-old gentleman who has completed eighth 
 
         grade and has worked as a general laborer on farms and in 
 
         factories.  Claimant testified that he has had numerous health 
 
         problems including respiratory problems, a frontal head injury, 
 
         dental problems, a twisted left foot, a fractured left great toe, 
 
         a hearing loss, and an emotional disturbance wherein he was 
 
         terribly depressed and distraught.  All such problems were 
 
         described as not related to claimant's alleged December 15, 1987 
 
         injury.  Claimant has also had a "stomach strain" and a little 
 
         finger injury.  He did not list those on his answers to 
 
         defendants' interrogatories as they had not "entered his mind."
 
         
 
              Claimant began work with Prince Manufacturing in December 
 
         1973 and was working as a forklift operator on December 15, 1987. 
 
         Claimant stated that he had no back or shoulder problems prior to 
 
         December 1987.  Claimant testified that on that date, he injured 
 
         himself at work when he fell on his rear end and also hit his 
 
         right shoulder on a cast bar which was lying on a pallet.  
 
         Claimant described himself as becoming progressively more stiff 
 
         and sore subsequent to the incident.  He saw R. L. Morgan, M.D., 
 
         approximately three hours after the incident.  Dr. Morgan 
 
         apparently prescribed physical therapy.  He released claimant to 
 
         return to work on December 21, 1987.  Claimant testified that that 
 
         return was with restrictions and that he was unable to return to 
 
         work as work within the restrictions was not available.
 
         
 
              Claimant has subsequently been seen by John Donahue, M.D., 
 
         Kenneth M. Keane, M.D., W. 0. Samuelson, M.D., John A. Walck, 
 
         M.D., Len Weber, M.D., and Daniel Rhodes, M.D., at the University 
 
         of Iowa Hospitals and Clinics, Spine Diagnostic and Treatment 
 
         Center.  Claimant has kept copious notes relative to his medical 
 
         visits from December 15, 1987 onward.
 
         
 
              Dr. Donahue released claimant to his regular duties on May 
 
         6, 1988.  Claimant was not to do repetitive bending and was not 
 
         to lift over 70 pounds.  Claimant reported that he was directed 
 
                                                 
 
                                                          
 
         to return to forklift driving, but that he was unable to do so as 
 
         he could not lift his foot the two feet required to get onto the 
 
         forklift.  Claimant subsequently saw Dr. Rhodes and Dr. Samuelson 
 
         of Morningside Family Practice Center.  Physical therapy was 
 
         initially attempted.  In July 1988, claimant was directed to a 
 
         work hardening program through St. Lukes Hospital.  Claimant 
 
         stated he went one day, but that he hurt so bad after that day he 
 
         could.not return for further treatment.  Claimant testified that 
 
         Dr. Samuelson refused to prescribe narcotic prescription 
 
         medications and advised him to take aspirins.  Claimant saw Dr. 
 
         Weber at defendants' direction.  County General Relief directed 
 
         claimant to the University of Iowa program.  There he was 
 
         evaluated by a number of physicians and other physical therapists 
 
         and other specialized practitioners from February 11, 1989 
 
         through February 14, 1989.  Claimant testified that he commenced 
 
         a home exercise program the University of Iowa Hospitals and 
 
         Clinics physicians prescribed.  He reported that he attempts to 
 
         do the program every day, but cannot do some of it because he is 
 
         already in too much pain.  Claimant stated that he attempts to 
 
         walk on his acreage two or three times per day, but opined that 
 
         he is not getting better.
 
         
 
              Claimant was again seen at the University of Iowa on April 
 
         11, 1989 and June 6, 1989.  Claimant stated that the University 
 
         of Iowa practitioners advised him that no doctor could help him 
 
         and that he would have to do everything on his own.
 
         
 
              James R. Hairston, Ph.D., administered a Minnesota 
 
         Multiphasic Personality Inventory for claimant on March 28, 1988. 
 
         James Baker, a psychologist, saw claimant for evaluation on March 
 
         10, 1989.
 
         
 
              Dr. Morgan apparently prescribed a back brace for claimant 
 
         which claimant used until April 1989 when it "wore out."  
 
         Claimant now uses a cane.  No physician has prescribed its use.
 
         
 
              Claimant testified that he has persistent pain in his low 
 
         back and his legs.  He variously described the pain in his legs 
 
         as "like no feeling" and as "sharp pain."  Claimant testified 
 
         that he has occasional pain in his shoulder and neck.  Claimant 
 
         described his limitations as set forth here.  He reported he 
 
         could lift 15-20 pounds infrequently, can carry 15-20 pounds 
 
         approximately 20 feet, can slowly walk one-third to one-half 
 
         block, and can sit comfortably approximately one-half hour.  
 
         Claimant reported that he.can push a grocery cart containing 
 
         approximately 15-20 pounds for approximately 30 feet if he leans 
 
         on the cart with both hands. He can pull a grocery cart carrying 
 
         approximately the same poundage for about 15 feet.  He can pull a 
 
         sleigh on ice with items weighing approximately 40 pounds for 
 
         approximately 15-20 feet.  He can climb three or four steps with 
 
         a railing and can climb approximately three steps on a 
 
         stepladder.  He reported that steps are not as high as was the 
 
         height to the forklift bar. Claimant reported that he cannot 
 
         balance on his left foot without using his cane, although he can 
 
         do so on the right.  He cannot stoop beyond three-quarters of the 
 
                                                 
 
                                                          
 
         distance to the floor, although he can kneel and bend some.  He 
 
         cannot reach overhead "beyond half ways" without creating 
 
         pressure in his low back.  He can pick up objects with his hands, 
 
         however.  He puts on his shoes and socks by maneuvering into 
 
         position.  Claimant reported that he drives his car approximately 
 
         four times per week, but does not drive his pickup very often as 
 
         doing so is uncomfortable.  He reported that he has difficulty 
 
         stretching out in the pickup and at times cannot use the clutch. 
 
          Claimant stated he does not drive for over one-half hour at a 
 
         time.
 
         
 
              Claimant reported that he sleeps only one to two hours per 
 
         night.  He indicated that he begins his day by getting up and 
 
         making coffee.  He subsequently reads the paper, does dishes and 
 
         does his exercises.  He cleans his home between times perhaps 
 
         pushing a vacuum cleaner a little at a time.  He does laundry 
 
         approximately once a week.  He calls people and visits relatives. 
 
         Claimant reported that his son helps maintain his acreage using a 
 
         riding mower.  Claimant stated that his daughter and son help 
 
         plant his garden and that his son has helped maintain that. 
 
         Claimant's son is 10 years old.
 
         
 
              Claimant indicated that he has fished since his December 15, 
 
         1987 injury, but that he cannot enjoy doing so as he has to take 
 
         too much medication.  Claimant reported that when he last fished, 
 
 
 
                            
 
                                                          
 
         he took six 500 mg. Ampicillin; fifteen 200 mg. Ibuprofin; and, 
 
         six 350 mg. Soma.  He agreed that the Ampicillin is prescribed 
 
         for his lung condition and not for matters related to the 
 
         December 15, 1987 incident.  He reported that the Soma was 
 
         prescribed for his nervous breakdown in 1987 and not for matters 
 
         related to the December 15, 1987 incident.  Claimant also takes 
 
         Tylenol III and Dolobid BID as well as 10 mg. Flexeril.  Claimant 
 
         agreed that when he ice fished, he had to drill two or three 
 
         holes and had to scoop the ice out when the hole froze over.  He 
 
         reported that he had to move throughout the day and had to drill 
 
         more holes as he moved his fishing spot.  Claimant puts the fish 
 
         he catches in buckets of water.  He stated that the number of 
 
         fish in the bucket determines how well he is able to lift the 
 
         bucket.  He agreed that if the sleigh he uses while ice fishing 
 
         freezes in the ice, he has to work it loose.
 
         
 
               Claimant testified that he puts air in his vehicle tires, 
 
         albeit with pain.  He described his pickup truck as being 
 
         approximately 18 inches from the ground at its base.  Claimant 
 
         denied that he has hunted since his injury, but agreed that he 
 
         has fired both shotguns and 22 rifles on occasions since his 
 
         injury. He stated that a .22 rifle weighs 4-5 pounds and that he 
 
         shoots clay pigeon targets.  He reported that he shoots 
 
         right-handed and that he  has difficulty balancing to shoot, 
 
         although he can do so with pain. Claimant reported that his son, 
 
         nephew and stepson generally threw the clay pigeons into the air, 
 
         but he has done so, albeit with difficulty.  Claimant agreed that 
 
         he had set up a canvas and screening tent on his property five or 
 
         six days before hearing.  He described the tent as eight feet 
 
         wide and twelve feet long.  Claimant characterized himself as 
 
         "miserable" while putting up the tent and reported it took him 
 
         about one-half hour to do so. At least eight aluminum poles are 
 
         used to support the tent's canvas and screening.
 
         
 
              Claimant expressed his opinion that, even had he been able 
 
         to get on the forklift on his initial work return, he did not 
 
         know if he could have operated the forklift as it vibrated and 
 
         had foot pedals.
 
         
 
              Claimant stated that he had had emotional problems after his 
 
         third wife left him and as a result of stress related to the 
 
         impact of his hearing loss on his ability to perform his job.  He 
 
         opined that he is not now bothered by emotional problems as he 
 
         thinks he has gotten those under control.  Claimant agreed that 
 
         he had had some additional emotional problems in 1988 subsequent 
 
         to his brother's death.  He stated, however, that his brother had 
 
         died in early 1988.  He stated that by then he had learned to 
 
         control himself over his brother and his divorce.
 
         
 
              On May 9, 1988, Vernon Helt, M.D., reported that claimant 
 
         had had a flare-up of shaking and anxiety which was part of 
 
         extended grief over his brother's death.  He opined it would be 
 
         difficult (for claimant) to attend (dissolution proceedings 
 
         scheduled for May 11, 1988), but that claimant would be okay in 
 
         one month.
 
                                                 
 
                                                          
 
         
 
              In 1987 claimant returned to work in July subsequent to a 
 
         February 1987 left toe injury.  He had his "nervous breakdown" in 
 
         late July 1987 and returned to work after such in September 1987. 
 
         Claimant has been off work since December 15, 1987.
 
         
 
              Claimant reported that he contacted Iowa State Vocational 
 
         Rehabilitation in December 1988, but reported that no vocational 
 
         rehabilitation program was initiated because he was "in no 
 
         condition to do anything."  He reported that he has contacted Job 
 
         Service about employment on two occasions, but that he was 
 
         advised they could not help since he had no doctor's release or, 
 
         in his words, because he was "willing but not able" to work.  
 
         Claimant stated that on September 18, 1989, he called Craig at 
 
         the. personnel department at Prince about work.  He reported that 
 
         Craig advised him he would need a doctor's release before he 
 
         could return to work.  Claimant stated he does not have such a 
 
         release and does not know where he will get one.
 
         
 
              Richard Sturgeon, who had been a paralegal with claimant's 
 
         prior counsel, reported that he had once observed claimant 
 
         walking from claimant's former counsel's building.  Sturgeon 
 
         indicated that claimant walked the same outside the office as in 
 
         the office.
 
         
 
              Henry M. Gilbertson, a friend of claimant and a Prince 
 
         employee for the past eleven years, reported that prior to 
 
         December 15, 1987, claimant had no back, neck or shoulder 
 
         problems.  Gilbertson stated that he visits claimant's home from 
 
         one to four times per month.  He described claimant as "in agony" 
 
         and as "not himself anymore."  Gilbertson reported that he and 
 
         claimant fished together prior to claimant's injury, but that 
 
         since claimant's injury, claimant has declined his invitations to 
 
         fish as claimant has not felt up to doing so.
 
         
 
              Michael J. Bohr is a licensed private investigator with a 
 
         bachelor of arts degree in political science and four years 
 
         experience as an investigator as well as six years experience as 
 
         an intelligence specialist with [the Army's] special forces unit. 
 
         Mr. Bohr observed claimant's activities on January 19, 1989.  Mr. 
 
         Bohr's testimony and his report dated January 19, 1989, which is 
 
         defendants' exhibit 49, established that claimant on that day 
 
         left his residence at 7:31 a.m., traveled in his vehicle with the 
 
         lights off until he arrived at Snyder Bend County Park where he 
 
         ice fished until at least 5:00 p.m.  During the course of the 
 
         day, claimant sat on a 5-gallon plastic pail for long periods of 
 
         time, stood, moved his fishing spot while carrying a gas-powered 
 
         ice auger in a box on his sleigh; bent at the waist, squatted, 
 
         twisted and lifted without obvious signs of pain or discomfort.  
 
         Claimant kept any fish caught in a 5-gallon pail which was 
 
         three-quarters full of water.
 
         
 
              Bohr reported that while with the special forces, he had 
 
         been a weapons specialist and therefore was familiar with rifles 
 
         and shotguns.  He indicated that a .22 rifle would not have much 
 
                                                 
 
                                                          
 
         recoil, but that after firing a shotgun, one might experience 
 
         discomfort in the back and shoulder.
 
         
 
              Bohr reported that he had seen the tent on claimant's 
 
         property.  He described the tent as family sized and able to 
 
         accommodate 8-10 people.  He reported that the tent was 8 feet 
 
         tall and 8-10 feet square.  He reported that the poles of the 
 
         tent arched to approximately 12 feet.  He described the tent's 
 
         weight as in excess of 40 pounds.
 
         
 
              Byron Orr reported that he has been employed by Prince 
 
         Manufacturing for six years and has been a foreman for that 
 
         employer for three years, during which time he was claimant's 
 
         supervisor.  Orr indicated that he saw claimant fall on December 
 
         l5, 1987 and that claimant hit the floor with his right hip, 
 
         right elbow, and right shoulder.  He expressed his belief that, 
 
         while claimant tripped over a bar, nothing was behind claimant 
 
         when claimant fell and that claimant hit no area other than the 
 
         floor. Orr stated that in order to get onto the forklift, one 
 
         must first step on two steps, one on the side of the forklift and 
 
         one from the forklift platform to the forklift seat.  Orr saw 
 
         claimant at K-Mart in December 1988.   Orr at that time observed 
 
         nothing unusual about claimant's walk.
 
         
 
              Medical records relative to claimant's pre-December 15, 1987 
 
         injuries generally evidence a pattern of claimant having more 
 
         difficulties relative to the described injury than his physicians 
 
         had anticipated and of claimant having a more prolonged 
 
         rehabilitation period than his.physicians had anticipated.
 
         
 
              An MRI of claimant's lumbar spine was performed on January 
 
         29, 1988.  A degenerative disc at the fourth level was found. 
 
         Minimal bulging of the fourth level.posteriorly also existed with 
 
         the active view demonstrating effacement of fat on the left at 
 
         the fourth level compatible with protruded disc at L4 on the 
 
         left.
 
         
 
              A February 21, 1989 medical report of James N. Weinstein, 
 
         M.D., associate professor and constructive spinal surgeon, 
 
         medical director, Spine Diagnostic and Treatment Center, 
 
         Department of Orthopaedic Surgery, University of Iowa Hospitals 
 
         and Clinics, described claimant by way of physical therapy 
 
         evaluation as being moderately self-limiting and showing severe 
 
         pain behavior. Claimant's maximum nonrepetitive lifting limit, 
 
         less than four times per hour, are squat lift 0 pounds, partial 
 
         squat lift 0 pounds, and arm lift 3 pounds.  Claimant was able to 
 
         tolerate sitting for approximately 1-2 hours with a back support.  
 
         Claimant was described as very deconditioned due to his decreased 
 
         activity level.  It was felt that claimant was rehabilitable and 
 
         could definitely improve both his strength and his endurance, but 
 
         that claimant must assume responsibility for doing this.
 
         
 
              Rehabilitation evaluation was performed at the University of 
 
         Iowa on February 14, 1989.  Upon physical examination, claimant 
 
         moved extremely slowly, forward flexed to approximately 15 
 
                                                 
 
                                                          
 
         degrees, and would not fully straighten.  His range of motion was 
 
         not determined due to his pain.  Incongruencies were positive for 
 
         overreaction, skin roll, head compression, twist, and 
 
         nondermatomal distribution.  Reflexes were 2+ in the left knee, 
 
         1+ in the right knee, and 2+ in both ankles.  Sensation was very 
 
         difficult to evaluate as sensory exams seemed to change during 
 
         the examination.  Claimant claimed diffused decreased sensation 
 
         along the anterior posterior aspects of both thigh and calf 
 
         bilaterally greatest to pinprick with sensation more intact to 
 
         pinch and light touch.  Impression was of chronic severe low back 
 
         pain with possible significant psychologic overlay.
 
         
 
              Eugene F. Gauron, Ph.D., clinical psychologist, apparently 
 
         evaluated claimant psychologically on February 14, 1989.  Mr. 
 
         Gauron stated the following:
 
         
 
              Roger Mulenberg [sic] perfectly filled the bill of his 
 
              self-description, as he looked the part of a person who was 
 
              totally miserable.  He seemed quite invested in body 
 
              language, descriptions of what causes pain and who has done 
 
              what to him medically.  To sum all this up, suffice it to 
 
              say that he had lots and lots of pain complaints.  He gets 
 
              across the message that he does not take kindly to what has 
 
              happened to him.
 
         
 
                   Somewhere along the line, someone told him something he 
 
              did not like hearing - that all of this was in his head.  
 
              This may have firmed up his resolution to be even more 
 
              convincing. He went so far as to be sent back to work, but 
 
              the people there "felt sorry for him" and sent him home.
 
         
 
              On March 10, 1989 in a letter to claimant's counsel, Dr. 
 
         Weinstein and Ted Wernimont, M.S.W., Director, Rehabilitation 
 
 
 
                            
 
                                                          
 
         Programs at the Spine Diagnostic and Treatment Center, stated the 
 
         following:
 
         
 
              I received your letter of February 27, 1989 regarding Roger 
 
              Muilenburg.  In response to your questions regarding Mr. 
 
              Muilenburg, I believe that it is imperative at this time for 
 
              Mr. Muilenburg to begin to increase his own physical 
 
              functioning without help from anybody, as he must take 
 
              responsibility for his own well-being.  Rehabilitation 
 
              programs and vocational and psychological intervention are 
 
              designed to help people who have demonstrated a strong 
 
              desire to improve and have already turned around in their 
 
              mind the concept of disability versus activity.  I realize 
 
              that this may sound insensitive, however, it has been our 
 
              experience that Mr. Muilenburg could be sent from 
 
              psychologist to psychologist and from therapist to therapist 
 
              without any benefit whatsoever.  Therefore, at this time, I 
 
              feel honestly that in Mr. Muilenburg's best interest, it is 
 
              important to begin to pull away and eliminate the reinforces 
 
              for his continued disability status and force him to begin 
 
              to make decisions on his own and act on his own.
 
         
 
              An undated memo from the Spine Diagnostic and Treatment 
 
         Center, apparently of Mr. Wernimont, states the following:
 
         
 
              Here's info on Roger.  This is a tough situation.  He has 
 
              just not complied [with] the program requested.  Our belief 
 
              continues to be that his pain is the result of self 
 
              limitation and lack of an intense effort.
 
         
 
              An April 11, 1989 clinical note, apparently of the 
 
         University of Iowa Hospitals and Clinics, states that after 
 
         reviewing claimant's evaluation in February and seeing the 
 
         patient on that date, the examiners were unable to determine 
 
         exactly whether claimant's physical and psychological problems 
 
         resulted from his injury on December 12, [sic] 1987.  Claimant 
 
         was described as temporarily incapacitated and unable to work.  
 
         An expected return to work date could not be established.
 
         
 
              A June 6, 1989 clinical note, apparently of the University 
 
         of Iowa Hospitals and Clinics, Spine Diagnostic and Treatment 
 
         Center, states that claimant's previously-issued exercise program 
 
         was reviewed with claimant and it looked as though claimant was 
 
         not complying with the exercises.  Claimant was directed to take 
 
         charge and be responsible for following through with the 
 
         exercises and was told he could expect to have good and bad days.  
 
         He was encouraged to continue the exercises BID and to walk as 
 
         much as possible and eventually work up to ten repetitions of the 
 
         exercises.  It was felt that, in light of the rehab evaluation, 
 
         the clinic had no more to offer in terms of exercise unless 
 
         claimant took an active role in his exercise program.  Claimant 
 
         was to be followed PRN.
 
         
 
              James R. Hairston, Ph.D., Department of Clinical services, 
 
         Marian Health Center, administered the Minnesota Multiphasic 
 
                                                 
 
                                                          
 
         Personality Inventory to claimant on March 28, 1988.  The validity 
 
         of the test profile was established.  The validity configuration 
 
         indicated that claimant was attempting to avoid or deny 
 
         unacceptable feelings, impulses and problems.  That is, claimant 
 
         was trying to present himself in the best possible light.  
 
         Claimant was described as tending to be simplistic and viewing the 
 
         world in terms of extremes of good and bad.  Claimant's high point 
 
         clinical code (4/1) was described as relatively rate.  His primary 
 
         features appeared to be hypochondriacal.  Pessimistic, whiny and 
 
         nagging qualities might be exhibited.  The hypochondriacal 
 
         adjustment was described as essentially chronic in nature and 
 
         consequently resistant to change or intervention.
 
         
 
              Michael P. Baker, Ph.D., licensed clinical psychologist, 
 
         evaluated claimant on March 10, 1989.  Mr. Baker stated the 
 
         following on page 3 of his March 10, 1989 report:
 
         
 
              The MCMI narrative states that there is a distinct tendency 
 
              toward avoiding self disclosure evident in this client's 
 
              response style.  This nondisclosure may signify a 
 
              charactological evasiveness or an unwillingness to divulge 
 
              matters of a personal nature, problematic or not.  Also 
 
              possible are broad deficits in introspectiveness and 
 
              psychological mindedness, owing to either emotional 
 
              improvishment [sic] or thought vagueness.  This man is 
 
              unusually dependent, self effacing, and non-competitive.  He 
 
              leans on others for guidance and security, assuming a 
 
              passive role in most relationships.  A striking lack of 
 
              initiative and a general avoidance of autonomy are notable. 
 
               Dependent and vulnerable, he is separated from those who 
 
              provide support, [sic] he resents those on whom he depends 
 
              since they often are critical and disapproving.  Depressive 
 
              feelings of loneliness and isolation are increasingly 
 
              experienced, although he is unlikely to admit these 
 
              distressing moods.  He may attempt to appear calm, but 
 
              underlying tensions and dysphoria are present in a 
 
              disturbing mixture of anxiety, sadness and guilt.  
 
              Insecurity and a fear of abandonment underlie his 
 
              superficial and nondisclosing and benign attitude toward his 
 
              difficulties.  He hopes to be left alone or to evoke 
 
              sympathetic nurturence and protection by acting weak, 
 
              expressing self-doubt, communicating a need for assurance 
 
              and direction and displaying a desire to submit and comply.  
 
              The MCMI goes on to state that his reported complaints of 
 
              weakness and fatigability and his tendency to succomb [sic] 
 
              easily to physical exhaustion and illness may represent 
 
              somatic expression of his underlying mood of depression.  
 
              Under these circumstances, simple responsibilities demand 
 
              more energy than he can muster.  He experiences life as 
 
              empty but draining and constantly feels weary or apathetic.  
 
              Be restricting his social contacts and emotional 
 
              involvements, he effectively limits the possibility of 
 
              learning new, potentially useful skills and competency.  A 
 
              mixed personality disorder is suggested by the MCMI, 
 
              including dependent schizoid, and obsessive compulsive 
 
                                                 
 
                                                          
 
                   personality features.
 
         
 
         The MCMI is the Millon Clinical Multiaxial Inventory.
 
         
 
              Mr. Baker felt that claimant was not consciously 
 
         malingering, but was convinced claimant was experiencing constant 
 
         debilitating pain.  Baker stated that because of the problematic 
 
         personality and attitudinal issues raised, claimant appeared in 
 
         need of psychotherapeutic assistance to gain motivation to do 
 
         necessary exercises for rehabilitation.  Baker interpreted 
 
         claimant's responses to the Millon Behavioral Health Inventory.as 
 
         indicating that claimant relates to others in a rather retiring, 
 
         listless and unassertive way.  Baker stated that a patient with 
 
         chronic illnesses displaying like MBHI scores may not have shown 
 
         those behaviors prior to the physical ailment, but may have 
 
         developed the behaviors as a gradual adaptation to the sick role.  
 
         Baker stated that a patient with like MBHI scores tends to 
 
         downplay the patient's abilities and feels that the patient 
 
         possesses less energy than most and therefore is not inclined to 
 
         alter his lifestyle and find new activities and directions.
 
         
 
              Leonard E. Weber, M.D., apparently a neurologist, evaluated 
 
         claimant on February 21, 1989.  He found an objectively normal 
 
         neurologic examination with subjective complaints of neck, 
 
         shoulder and back discomfort persisting for over one year since 
 
         the fall onto the back and buttocks on December 15, 1987.  He 
 
         stated it was indeterminate whether L4 disc degeneration and 
 
         bulging found on previous magnetic scanning contributed at all to 
 
         claimant's symptoms.  Electromyographic testing showed some 
 
         minimal denervation at the right L5,S1 and left L5 levels, but 
 
         those changes were unsupported by historical or clinical changes 
 
         within the related root territories and appeared to be 
 
         interesting but incidental and asymptomatic findings.  The doctor 
 
         felt that the etiology of claimant's neck, shoulder and back 
 
         complaints appeared to be hysteria, malingering or a combination 
 
         of both.
 
         
 
              Dr. Weber opined that on a purely physical basis, claimant 
 
         could return to work activities at any time with restrictions on 
 
         repetitive forward bending, and on lifting in a bent forward 
 
         rather than a squat position.  A 50-pound lifting restriction was 
 
         also thought appropriate.  Dr. Weber opined that claimant would 
 
         not feel able to return to job activities for psychological 
 
         reasons.
 
         
 
              Defendants' exhibit 43, a statement of claimant's earnings 
 
         prior to injury, indicates that the thirteen weeks immediately 
 
         preceding claimant's injury when claimant worked for the employer 
 
         without absences due to illness, vacation or other causes are the 
 
         following:
 
         
 
                   Week Ending     Regular Earnings     Incentive Pay
 
         
 
                December  12, 1987      $374.80            $53.99
 
                November  21, 1987       374.80             62.91
 
                                                 
 
                                                          
 
                November   7, 1987       374.80             55.37
 
                October    3, 1987       374.80             52.64
 
                September 26, 1987       374.80             68.57
 
                August     1, 1987       149.92             25.10
 
                July      18, 1987       374.80             62.23
 
                July      11, 1987       224.88             36.63
 
                February  28, 1987       291.84             46.99
 
                February  21, 1987       364.80             64.76
 
                February  14, 1987       364.80             66.47
 
                February   7, 1987       364.80             66.79
 
                January   31, 1987       364.80             62.30
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether a causal relationship exists 
 
         between claimant's asserted injury and his claimed continuing 
 
         temporary total disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 15, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
 
 
                         
 
                                                          
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128,(1967).
 
         
 
              While a claimant is not entitled tb compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Claimant has not established the prerequisite causal 
 
         relationship.  The only expert evidence relating claimant's 
 
         current situation to his work incident,in December 1987 does so 
 
         only with reference to the history claimant gave the physician. 
 
         Such is insufficient evidence of a casual connection when it is 
 
         balanced against the numerous statements relating claimant's 
 
         current complaints to his overall psychological and mental 
 
         condition.  Similarly, nothing in this record suggests that 
 
         claimant's psychological condition, which condition apparently 
 
         predisposes him to hypochondriacal reactions to incidents which 
 
         at best might have produced minor, chronologically self-limiting 
 
         physical ailments, either resulted from or was aggravated by the 
 
         December 1987 work incident.  Claimant's psychological problems 
 
         are described by psychological experts as longstanding problems 
 
         that are most resilient to change.  Claimant's reaction to his 
 
         December 1987 work incident merely reflects those ongoing 
 
         psychological problems.  While it is unfortunate that claimant 
 
         has reacted to the minor work incident as claimant has reacted, 
 
         the work incident cannot be said to have caused the reaction as 
 
         the reaction is merely a reflection of claimant's ongoing 
 
         psychological condition which condition preexisted and was not 
 
         aggravated by the incident of December 15, 1987.  In Newman v. 
 
         John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (1985), 
 
         the Iowa court noted that it could find no cases which permit 
 
         recovery where employment merely provided a stage for the nervous 
 
         injury.  [Emphasis in original.]  Here, claimant's work incident 
 
         merely provided claimant another means for acting out a 
 
         preexisting pattern of behavior based on a longstanding 
 
         psychological condition.  We find that recovery is not permitted 
 
         when an employment incident merely provides a stage for the 
 
         acting out of a longstanding nervous condition.
 
         
 
              As claimant has not established a causal relationship between 
 
         his continuing disability and his work incident of December 15, 
 
         1987, claimant is not entitled to either temporary total or 
 
         healing period benefits at this time.  The question remains as to 
 
                                                 
 
                                                          
 
         whether claimant is entitled to either temporary total or healing 
 
         period benefits beyond those already paid.  A form 2A filed May 
 
         19, 1988 indicates that claimant was paid 19 weeks of temporary 
 
         total disability from December 16, 1987 through May 3, 1988.  Dr. 
 
         Morgan apparently returned claimant to work on December 21, 1987, 
 
         albeit with restrictions.  Claimant's report is that he was unable 
 
         to return to work as work within the restrictions was not 
 
         available.  Dr. Donahue released claimant for regular duties on 
 
         apparently May 6, 1988.  Dr. Donahue's only restrictions on 
 
         claimant were that he not do repetitive bending and that he.not 
 
         lift over 70 pounds.  Claimant did not return to work at that 
 
         time, although he attempted a work return.  Nothing in this record 
 
         suggests that claimant's inability to work at that time related to 
 
         the restrictions Dr. Donahue had imposed upon claimant.  
 
         Claimant's inability to work resulted from claimant's self-belief 
 
         that he was unable to lift his foot the distance required to get 
 
         onto his forklift.  That belief relates to claimant's underlying 
 
         psychological state which state was neither caused by nor 
 
         aggravated by the December 15, 1987 incident.  Therefore, claimant 
 
         is not entitled to healing period or temporary total disability 
 
         benefits beyond, at best, May 6, 1988.
 
         
 
              We reach the war of the rates.  Claimant was apparently paid 
 
         an hourly wage plus an incentive pay amount related in some way 
 
         to his job performance or his job duties.  The record does not 
 
         disclose how the incentive pay was determined.  It is apparent, 
 
         however, that claimant had to actually be at the work site 
 
         performing work before he was entitled to incentive pay.
 
         
 
              It is not uncommon in determining the rate under section 
 
              85.36(6) for a non-salaried employee to find that there are 
 
              weeks within the thirteen consecutive weeks prior to the 
 
              injury that contain absences due to illness, vacation or 
 
              other causes.  Since the worker often does not get paid 
 
              unless he works, these weeks are not representative of his 
 
              earnings.  The agency has consistently ruled that these 
 
              weeks are not included in the thirteen weeks for determining 
 
              the rate under Iowa Code section 85.36(6).  Instead, the 
 
              "short" weeks are skipped and additional weeks are included 
 
              until thirteen completed consecutive weeks are accumulated 
 
              for the calculation.  The rationale for this method of 
 
              determining the weekly earnings is based on the mandate of 
 
              the first unnumbered paragraph of Iowa Code section 85.36 
 
              which requires a determination of earnings to which an 
 
              employee "would have been entitled had he worked the 
 
              customary hours for the full pay period in which he was 
 
              injured. . . ." (Lawyer and Higgs, Iowa Workers' 
 
              Compensation -- Law and Practice, section 12-4)
 
         
 
              The undersigned does not agree with claimant's apparent 
 
         contention that claimant's rate should be calculated using only 
 
         those weeks in which claimant worked 40 hours.  Claimant was an 
 
         hourly worker.  As such, it is reasonable to conclude that his 
 
         regular work week might at times be less than and.might at times 
 
         be more than 40 hours.  No evidence of a guarantee of at least 40 
 
                                                 
 
                                                          
 
         hours of work each week was presented.  Defendants' contentions 
 
         regarding the weeks to be included in calculating claimant's rate 
 
         is consistent with the undersigned's, but for the fact that 
 
         defendants include the week of October 23, 1987.  Claimant 
 
         received only vacation pay during that week.  Vacation pay was 
 
         calculated only on claimant's hourly wage and did not include any 
 
         amounts for incentive pay.  Claimant's actual wages during weeks 
 
         in which claimant actually worked included.an incentive pay 
 
         amount.  Hence, a vacation pay only week does not reflect 
 
         claimant's actual earnings had claimant worked the customary 
 
         hours for the full pay period in which the employee was injured, 
 
         as regularly required by the employee's employer for the work or 
 
         employment for which the employee was employed.  The actual 
 
         thirteen weeks to be used in calculating claimant's rate are set 
 
         forth above in the review of the evidence.  Those thirteen weeks 
 
         total $5,099.39.  That amount divided by thirteen and rounded to 
 
         the nearest dollar is $392.00.  When injured, claimant was 
 
         married and had three exemptions.  His rate of weekly 
 
         compensation is $251.60.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant had a minor work incident on December 15, 1987 when 
 
         he fell and hit the floor with his right hip, right elbow, and 
 
         right shoulder.
 
         
 
              Claimant has self-limited his activities and has engaged in 
 
         severe pain behavior subsequent to the December 15, 1987 work 
 
         incident.
 
         
 
              Claimant had had a variety of health problems and minor 
 
         injuries prior to December 15, 1987.
 
         
 
              Claimant had a pattern relative to his earlier health 
 
         conditions and injuries of having more difficulties relative to 
 
         the condition or injury than his physicians had anticipated and 
 
         as having a more prolonged rehabilitation period subsequent to 
 
         the onset of the health condition or injury than his physicians 
 
         had anticipated.
 
         
 
              Claimant had emotional problems at the time of his 
 
         separation from his third wife and subsequent to his brother's 
 
         death.
 
         
 
              Claimant's brother died in apparently winter, 1987 or 
 
         spring, 1988.
 
         
 
              His dissolution of marriage proceeding was originally 
 
         scheduled for May 11, 1988.
 
         
 
              Claimant is hypochondriacal and likely has pessimistic, 
 
         whiny, and nagging qualities.
 
         
 
                                                 
 
                                                          
 
              Claimant's hypochondriacal adjustment is essentially chronic 
 
         in nature and resistant to change or intervention.
 
         
 
              Claimant's current life limitations and his severe pain 
 
         behavior relate to his hypochondriacal adjustment and not to his 
 
         December 15, 1987 work incident.
 
         
 
              Claimant's December 15, 1987 work incident neither caused 
 
         nor aggravated his hypochondriacal adjustment.
 
         
 
              Dr. Morgan released claimant to work on December 21, 1987. 
 
         That work release was with restrictions and work within the 
 
         restrictions was not available.
 
         
 
              Dr. Donahue released claimant to work on May 6, 1988.  Dr. 
 
         Donahue gave claimant restrictions as to repetitive bending and 
 
         lifting over 70 pounds.
 
         
 
              Claimant returned to work, but believed himself unable to 
 
         work for reasons related to claimant's hypochondriacal adjustment 
 
         and not related to Dr. Donahue's restrictions.
 
         
 
              Claimant's period of temporary total disability ended as of 
 
         May 6, 1988.
 
         
 
              Claimant's wage was based on an hourly rate of pay plus 
 
         additional incentive pay.
 
         
 
              Claimant received incentive pay only during those weeks in 
 
         which he actually worked for the employer.
 
         
 
              Claimant was married and entitled to three exemptions at the 
 
         time of his work incident.
 
                       
 
                                                          
 
         
 
              Claimant's gross weekly wage equals $392.00.
 
         
 
              Claimant's rate of weekly compensation is $251.60.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established a causal relationship between 
 
         his December 15, 1987 work injury and his claimed current 
 
         disability.
 
         
 
              Claimant is entitled to temporary total disability/ healing 
 
         period benefits to May 6, 1988.  Defendants are entitled to a 
 
         credit for all such benefits previously paid.
 
         
 
              Claimant's rate of weekly compensation is $251 60.
 
                                        
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant temporary total disability/healing 
 
         period benefits from his injury through May 6, 1988 at the rate 
 
         of two hundred fifty-one and 60/100 dollars ($251.60) per week.
 
         
 
              Defendants receive credit for benefits previously paid.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Claimant pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              This matter shall be returned to docket for appropriate 
 
         scheduling of prehearing and hearing relative to the bifurcated 
 
         issues of causal relationship to and entitlement to permanent 
 
         partial disability and entitlement to the payment of medical 
 
         costs pursuant to section 85.27.
 
         
 
              Signed and filed this 20th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            HELENJEAN WALLESER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
                                                 
 
                                                          
 
         Mr. Paul W.,Deck, Sr.
 
         Attorney at Law
 
         635 Frances Building
 
         Sioux City, Iowa  51101
 
         
 
         Mr. Charles T. Patterson
 
         Ms. Judith Ann Higgs
 
         Attorneys at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER L. MUILENBERG,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 872566
 
                                          :
 
            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 COMMERCIAL INSURANCE    :
 
            DIVISION,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a bifurcated proceeding in arbitration upon the 
 
            May 6, 1988 petition of Roger L. Muilenberg against 
 
            defendant employer, Prince Manufacturing Company, and its 
 
            insurance carrier, Aetna Commercial Insurance Division, 
 
            seeking benefits under the Iowa Workers' Compensation Act as 
 
            the result of an injury sustained on December 15, 1987.
 
            
 
                 At a prehearing conference held March 7, 1989, Mr. 
 
            Muilenberg's claims for permanent partial disability and 
 
            medical benefits were bifurcated from other issues.  Other 
 
            issues came on for hearing before Deputy Industrial 
 
            Commissioner Helenjean Walleser on September 28, 1989.  An 
 
            Arbitration Decision concerning those issues was 
 
            subsequently filed on December 20, 1989.  It was therein 
 
            held that claimant suffered a minor work incident on 
 
            December 15, 1987, when he fell and hit the floor with his 
 
            right hip, right elbow and right shoulder.  He was further 
 
            held entitled to temporary total disability or healing 
 
            period benefits through May 6, 1988, at a weekly 
 
            compensation rate of $251.60, but failed to establish a 
 
            causal relationship between the work injury and claimed 
 
            current disability.  Other, more specific findings are 
 
            discussed below.  The cause was returned to the docket for 
 
            further hearing of the bifurcated issues of causal 
 
            relationship and entitlement to permanent disability and 
 
            medical benefits.
 
            
 
                 Those issues came on for hearing in Sioux City, Iowa, 
 
            on September 13, 1990.  The record consists of claimant's 
 
            exhibits 1 through 6, defendants' exhibit 53 (a videotape) 
 
            and the testimony of claimant and Michael Bahr (no doubt the 
 
            same individual known to Deputy Walleser as Michael Bohr).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      issues
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the work injury and claimed permanent disability;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability, if any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 Defendants have also asserted that certain findings of 
 
            Deputy Walleser concerning claimant's psychological status 
 
            and its lack of causal nexus to the work injury are binding 
 
            and preclude reconsideration of those issues.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 In the Arbitration Decision filed December 20, 1989, 
 
            Deputy Walleser found the following relevant facts:
 
            
 
                 Claimant had a minor work incident on December 15, 
 
                 1987 when he fell and hit the floor with his right 
 
                 hip, right elbow, and right shoulder.
 
            
 
                 Claimant has self-limited his activities and has 
 
                 engaged in severe pain behavior subsequent to the 
 
                 December 15, 1987 work incident.
 
            
 
                 Claimant had had a variety of health problems and 
 
                 minor injuries prior to December 15, 1987.
 
            
 
                 Claimant had a pattern relative to his earlier 
 
                 health conditions and injuries of having more 
 
                 difficulties relative to the condition or injury 
 
                 than his physicians had anticipated and as having 
 
                 a more prolonged rehabilitation period subsequent 
 
                 to the onset of the health condition or injury 
 
                 than his physicians had anticipated.
 
            
 
                 . . . .
 
            
 
                 Claimant is hypochondriacal and likely has 
 
                 pessimistic, whiny, and nagging qualities.
 
            
 
                 Claimant's hypochondriacal adjustment is 
 
                 essentially chronic in nature and resistant to 
 
                 change or intervention.
 
            
 
                 Claimant's current life limitations and his severe 
 
                 pain behavior relate to his hypochondriacal 
 
                 adjustment and not to his December 15, 1987 work 
 
                 incident.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's December 15, 1987 work incident neither 
 
                 caused nor aggravated his hypochondriacal 
 
                 adjustment.
 
            
 
                 Dr. Morgan released claimant to work on December 
 
                 21, 1987.  That work release was with restrictions 
 
                 and work within the restrictions was not 
 
                 available.
 
            
 
                 Dr. Donahue released claimant to work on May 6, 
 
                 1988.  Dr. Donahue gave claimant restrictions as 
 
                 to repetitive bending and lifting over 70 pounds.
 
            
 
                 Claimant returned to work, but believed himself 
 
                 unable to work for reasons related to claimant's 
 
                 hypochondriacal adjustment and not related to Dr. 
 
                 Donahue's restrictions.
 
            
 
                 Claimant's period of temporary total disability 
 
                 ended as of May 6, 1988.
 
            
 
                 Claimant subsequently filed a Motion for Rehearing on 
 
            January 11, 1990.  Deputy Walleser ruled on that application 
 
            January 30, 1990, specifying that:
 
            
 
                 Controlling in this matter is the fact that the 
 
                 record does not support a factual finding or a 
 
                 legal conclusion that claimant's preexisting, 
 
                 long-standing hypochondriacal condition was 
 
                 aggravated, accelerated or lighted up by the work 
 
                 incident of December 15, 1987.
 
            
 
                 The application for rehearing was denied.
 
            
 
                 In the view of this observer, the evidence presented at 
 
            the first arbitration hearing fully supports the factual 
 
            findings thereafter made.  The reader is referred to the 
 
            REVIEW OF THE EVIDENCE section of Deputy Walleser's opinion 
 
            for a detailed recounting of that evidence.  As there 
 
            appears to be no particularly compelling reason to pick and 
 
            choose particular facts contained therein, that REVIEW is 
 
            adopted in its entirety by this reference.
 
            
 
                 James N. Weinstein, M.D., wrote on September 15, 1989:
 
            
 
                 In specific response to your question regarding 
 
                 the hand written note sent to Joanne Bell at the 
 
                 Aetna Insurance Company, we feel at this time that 
 
                 Mr. Mullenberg [sic] continues to have a chronic 
 
                 pain syndrome which is primarily the result of 
 
                 severe deconditioning and lack of activity.  We do 
 
                 believe Mr. Mullenberg [sic] is indeed having a 
 
                 great deal of discomfort at this time, however, 
 
                 the objective findings that we have at this time 
 
                 continue to lead us to believe that the pain that 
 
                 he is having is primarily muscular in origin and 
 
                 the result of severe deconditioning and lack of 
 
                 appropriate conditioning.  We do not feel at this 
 
                 time that we have anything to offer this 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 gentleman, as he needs to take control of this 
 
                 situation on his own and begin to make progress 
 
                 with a home program.
 
            
 
                 Licensed certified psychologist Baker reported on 
 
            August 16, 1990 that claimant felt incapacitated with 
 
            respect to exercise and physical labor.  As to causation, he 
 
            opined that "[a]ny predispositions psychologically or 
 
            physically that may have existed probably was exacerbated by 
 
            the accident leading to diminished capacity."
 
            
 
                 Claimant was also seen for evaluation on July 10, 1990, 
 
            by Mark A. Kruse, D.C.  Dr. Kruse diagnosed sprain/strain of 
 
            the lumbar spine with accompanying instability and 
 
            myofascitis, nerve root compression into the left arm and 
 
            leg, brachial neuralgia, sciatic neuralgia, and 
 
            intervertebral disc lesion at L4.  Dr. Kruse concluded that 
 
            claimant was experiencing an acute episode at the time of 
 
            examination, and on that basis had sustained a 40 percent 
 
            impairment to the body as a whole, employing the American 
 
            Medical Associations Guides to the Evaluation of Permanent 
 
            Impairment.  He recommended a course of treatment, including 
 
            chiropractic manipulation, ultrasonic radiation and 
 
            electrical stimulation.  He did not express an opinion as to 
 
            whether claimant's condition was causally related to the 
 
            subject work injury, especially as opposed to severe 
 
            deconditioning and lack of activity.
 
            
 
                 A review of claimant's exhibit 5 discloses that Mr. 
 
            Muilenberg's complaints and self-described limitations are 
 
            many and his abilities few.  At hearing, all of claimant's 
 
            movements were at a virtual snail's pace.  Claimant remained 
 
            in a hunched-over posture and engaged in frequent displays 
 
            of pain behavior, such as grimacing.
 
            
 
                 Medical expenses claimed in this proceeding include a 
 
            $620.00 charge from the Spine Diagnostic and Treatment 
 
            Center for evaluation, a bill from Dr. Baker, and a $250.00 
 
            charge resulting from Dr. Kruse's evaluation.
 
            
 
                                conclusions of law
 
            
 
                 The crucial issue in this case relates to causation.  
 
            Did the work injury of December 15, 1987 cause claimant's 
 
            presently wretched state to develop, or is it 
 
            hypochondriacal and the result of severe deconditioning or 
 
            merely fraud?  There is both a physical and a psychological 
 
            component to that claimed current condition.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            15, 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 In denying continuing healing period or temporary total 
 
            disability benefits at the time of the first arbitration 
 
            decision, Deputy Walleser found that claimant's self-imposed 
 
            limitations and severe pain behavior related not to the work 
 
            injury, but to his hypochondriacal adjustment.  Further, she 
 
            concluded that the work incident neither caused nor 
 
            aggravated that hypochondriacal adjustment.  Defendants 
 
            assert that, particularly with respect to whether the work 
 
            injury caused the claimant's psychological problems, the 
 
            previous decision is binding and the issue cannot be 
 
            reexamined for purposes of determining permanent partial 
 
            impairment.
 
            
 
                 This presents an interesting legal issue, but one it is 
 
            unnecessary to resolve.  This writer considers Deputy 
 
            Walleser's discussion of the issue at the time of her 
 
            hearing persuasive as to the record presented there, and the 
 
            further evidence does not compel any different result.
 
            
 
                 Dr. Weinstein concluded that claimant's chronic pain 
 
            syndrome was primarily the result of severe deconditioning 
 
            and lack of activity.  Dr. Kruse did not express an opinion 
 
            as to causation and might best be described as half-hearted 
 
            or tentative in suggesting that "any predisposition" that 
 
            "may have existed" was "probably" exacerbated by the work 
 
            injury.  While psychological impairments are compensable, 
 
            Deaver v. Armstong Rubber Co., 170 N.W.2d 455 (Iowa 1969), 
 
            agency precedent suggests that while a psychologist has 
 
            expertise in the area of the mind, that expertise is not 
 
            medical in nature and has little weight, standing alone, as 
 
            to causation.  Saunders v. Cherry Burrell Corp., II Iowa 
 
            Industrial Commissioner Report 333 (1982).  Claimant's 
 
            credibility is certainly suspect as he has been convicted at 
 
            least once of defrauding the Iowa Department of Job Service 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (now a sister agency) by means of false claims.
 
            
 
                 The record presented here is insufficient to satisfy 
 
            claimant's burden of proof on the issue of causation.  The 
 
            best evidence is that his pain syndrome, if it exists at 
 
            all, is causally related to his psychological status and 
 
            resultant deconditioning, rather than the very minor work 
 
            incident.  The psychological factors are not reliably shown 
 
            to have been caused by that injury.  While Dr. Morgan 
 
            imposed restrictions, claimant has failed to show that his 
 
            current condition of claimed disability relates to the work 
 
            injury.
 
            
 
                 Dr. Bakers' fee is not compensable because claimant's 
 
            psychological problems have not been proven to be causally 
 
            related to the work injury.  Charges of Dr. Kruse and the 
 
            Spine Diagnostic and Treatment Center appear to be for 
 
            evaluation under Iowa Code section 85.39 rather than medical 
 
            treatment under Iowa Code section 85.27.  The hearing 
 
            assignment order filed in this case on July 17, 1990, does 
 
            not set forth entitlement under section 85.39 as an issue.  
 
            Only the issues presented at the prehearing conference (or 
 
            by later amendment of the hearing assignment order by that 
 
            deputy) are at issue here.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from these 
 
            proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Paul W. Deck
 
            Attorney at Law
 
            635 Frances Building
 
            Sioux City, Iowa  51101
 
            
 
            Ms. Judith Ann Higgs
 
            Mr. Charles T. Patterson
 
            Attorneys at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
         
 
 
 
                                            1108.20, 1108.50, 2205
 
                                            2206, 3001
 
                                            Filed December 20,  1989
 
                                            HELENJEAN WALLESER
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. MUILENBERG,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 872566
 
         PRINCE MANUFACTURING CO.,
 
                                                A R B I T R A T I 0 N 
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         AETNA COMMERCIAL INSURANCE
 
         DIVISION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.20, 1108.50, 2204, 2206
 
         
 
              No causal relationship found between claimant's present 
 
         complaints and claimant's minor work incident.  Claimant had 
 
         hypochondriacal adjustment which was chronic in nature and 
 
         resistant to change or intervention.  Claimant's behavior 
 
         subsequent to minor work incident merely reflected his 
 
         preexisting hypochondria which condition was neither produced nor 
 
         aggravated by minor work incident.
 
         
 
         3001
 
         
 
              Claimant's wage was based on an hourly rate of pay plus 
 
         additional incentive received only during weeks in which claimant 
 
         actually worked.  Week on which claimant received only vacation 
 
         pay excluded from 13-week calculation since claimant received no 
 
         incentive pay while on vacation.  Therefore, vacation week did 
 
         not reflect claimant's actual earnings had claimant worked the 
 
         customary hours for the full pay period in which claimant was 
 
         injured.  Claimant's contention that only weeks in which claimant 
 
         had worked at least 40 hours be included in 13-week calculation 
 
         period rejected where claimant was an hourly worker and no 
 
         showing was made that claimant was guaranteed at least 40 hour 
 
         work week.
 
         
 
         
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.40
 
                           Filed March 18, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROGER L. MUILENBERG,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 872566
 
                      :
 
            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 COMMERCIAL INSURANCE    :
 
            DIVISION, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1402.40
 
            Medical and permanent partial disability were at issue in 
 
            bifurcated hearing.  It was previously found by another 
 
            deputy that claimant's current condition was not causally 
 
            related to the work injury, especially psychological factors 
 
            (hysteria, malingering).  Claimant had also been convicted 
 
            of fraudulently obtaining job insurance benefits.
 
            Claimant failed to prove that his current condition bore a 
 
            causal nexus to the work injury.