BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            FRANK KRUEGER,   
 
                        
 
                 Claimant,                          File No. 872760
 
                        
 
            vs.                                      A P P E A L
 
                        
 
            WILSON FOODS CORPORATION,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                    ISSUES
 
 
 
            The issues on appeal are:  Whether claimant sustained an 
 
            injury on February 2, 1988 which arose out of and in the 
 
            course of his employment and if so, the nature and extent of 
 
            his disability.
 
            
 
                                 FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed January 3, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 *****
 
            
 
                 Frank Krueger is a 52-year-old married man who lives at 
 
            Holstein, Iowa.  He has been employed by Wilson Foods since 
 
            1959.  ***** Krueger is a 1955 high school graduate.  Prior 
 
            to commencing work for Wilson Foods in 1959, he worked for 
 
            the railroad and also performed road construction.
 
            
 
                 Krueger's health history is unremarkable, except for an 
 
            occurrence which began in 1979 when he began to experience 
 
            numbness and loss of control of his extremities.  He was 
 
            diagnosed as having a demyelinating condition.  He was taken 
 
            off work, treated and recovered.  Following his recovery, he 
 
            resumed all his prior work and nonwork activities.
 
            
 
                 On February 2, 1988, Krueger was performing his 
 
            customary job in the press room.  The work involved shaking 
 
            a piece of equipment referred to as a "tree" which held 
 
            cooked hams in metal forms which were held together by 
 
            springs.  Removal of the hams from the forms was 
 
            accomplished by shaking the tree vigorously.  Krueger had 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            noticed some pain in his back for a few days prior to 
 
            February 2, 1988.  On February 2, while vigorously shaking 
 
            the tree, he experienced the onset of severe pain in his 
 
            lower back, a symptom which he had not previously 
 
            experienced.  He also experienced pain in his right leg and 
 
            difficulty walking.
 
            
 
                 Claimant consulted the plant physician Keith Garner, 
 
            M.D.  According to Dr. Garner, Krueger did not report any 
 
            injury, but did complain of back pain and difficulty with 
 
            his right foot.  Dr. Garner referred Krueger to Ronald A. 
 
            Cooper, M.D., the neurologist who had treated him for the 
 
            demyelinating condition in 1979 and 1980.  Dr. Cooper felt 
 
            that claimant exhibited no evidence of a radiculopathy.  He 
 
            concluded that claimant was having a mild exacerbation of 
 
            the demyelinating condition.  The history shown in Dr. 
 
            Cooper's report states that claimant had twisted his back on 
 
            Tuesday of that week and began noticing lumbar pain and pain 
 
            in his leg.  The history further reports that the pain was 
 
            resolved, but that claimant was continuing to drag his right 
 
            leg (exhibit 2).  Dr. Cooper reported on March 7, 1988 that 
 
            claimant's gait had improved and that he could return to 
 
            work on March 14, 1988 (exhibit 3).
 
            
 
                 Dr. Garner agreed with the assessment of the case which 
 
            had been made by Dr. Cooper.  He also stated, however, that 
 
            a demyelinating condition generally does not cause pain and 
 
            that the pain which claimant described could have been 
 
            caused by an injury.  Dr. Garner also agreed that arthritis 
 
            and degeneration could cause pain and that if a person with 
 
            those conditions experienced an injury, it would make the 
 
            pain worse.  Dr. Garner was unable to determine if the 
 
            February 2 incident had caused any permanent problems.
 
            
 
                 Krueger also sought treatment from his family 
 
            physician, William L. Bender, M.D.  Dr. Bender in turn 
 
            referred him to neurosurgeon Quentin J. Durward, M.D.  Dr. 
 
            Durward conducted diagnostic tests consisting of x-rays and 
 
            a CT scan of the lumbar spine.  He concluded that claimant 
 
            had acute lumbar radiculopathy, though there may have been 
 
            some contribution to the condition from the previous 
 
            demyelinating condition.  Dr. Durward found extensive 
 
            degenerative changes in claimant's spine.  He indicated that 
 
            claimant had made a dramatic recovery and should be 
 
            authorized to return to work.  He also recommended that 
 
            claimant obtain a lumbar corset (exhibit 7).  [Dr. Durward 
 
            wrote in a letter dated April 8, 1988:  "I am a little more 
 
            inclined to feel that he had an acute lumbar radiculopathy 
 
            as the cause of this.  I think at this point in time it 
 
            might be appropriate for him to have an exercise program and 
 
            wear a back support when he returns to work" (exhibit 6).]
 
            
 
                 Dr. Bender agreed with the assessment of the case made 
 
            by Dr. Durward.  In his report, he states that if this 
 
            condition were similar to the one which had afflicted 
 
            claimant in 1980, the effects should have been bilateral.  
 
            Dr. Bender's explanation of the levels at which the 
 
            degenerative changes in claimant's spine were observed by 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Dr. Durward is accepted as being correct.  Dr. Bender 
 
            released claimant to return to work on April 25, 1988 
 
            (exhibits 4 and 5).  [Dr. Bender, in an undated letter 
 
            wrote:  "He may need a back support and he needs to continue 
 
            on william's abdominal exercises to give better posture and 
 
            strength through the back.  He then suffers from a lumbar 
 
            radiculopathy secondary to work related injury from 2-2-88 
 
            of which he is showing excellent recovery" (exhibit 4).]
 
            
 
                 Claimant was evaluated by Horst Blume, M.D., who 
 
            concluded that claimant had preexisting degenerative changes 
 
            in his spine which were aggravated by the February 2, 1988 
 
            injury.  He declined to assign a permanent impairment rating 
 
            (exhibit 8).  [Dr. Blume in a letter dated June 22, 1989 
 
            wrote:
 
            Clinically, we have no motor or sensory deficit, but he does 
 
            have off and on some radicular pain into his right leg.  The 
 
            patient also has degenerative disc disease at the levels of 
 
            L1/2, L2/3, L3/4, L4/5 and L5/S1 with a scoliosis convex to 
 
            the left side on plain x-ray film.
 
               The only way that one can come to a conclusion as to the 
 
            extent of the nerve root compression signs is to do a 
 
            myelogram and follow it with another CT scan in order to 
 
            identify the structures that could not be well identified 
 
            with a plain CT scan without dye in place. ... If all of the 
 
            above information is correct, one can make judgement with 
 
            reasonable medical probability, that the patient has 
 
            sustained an injury to the lumbar spine with an aggravation 
 
            of a very advanced lumbar disc pathology at practically all 
 
            lumbar disc levels, particularly at the level of L4 with 
 
            evidence of a previously existing spondylosis and 
 
            spondylarthritis.  It is very difficult to give a rating at 
 
            the present time because even though the myelogram was 
 
            approved, the patient is reluctant to have this done and we 
 
            are waiting for his decision.  (Exhibit 8)]
 
            
 
                 Claimant was also examined by Pat Luse, D.C., who felt 
 
            that claimant had sustained an injury in the nature of an 
 
            aggravation of a preexisting condition and assigned a ten 
 
            percent permanent impairment rating (exhibit 9).
 
            
 
                 It is found that Frank Krueger had preexisting 
 
            degenerative changes in his lumbar spine and that the 
 
            vigorous activity of shaking the tree on February 2, 1988 
 
            aggravated that preexisting condition.  There is a strong 
 
            possibility that the demyelinating condition also plays some 
 
            part in his symptomatology, although the symptoms did not 
 
            occur absent the trauma of February 2, 1988.
 
            
 
                 Claimant was off work commencing February 4, 1988 and 
 
            returned to work on April 26, 1988.  The earlier release for 
 
            March 14, 1988 which was issued by Dr. Cooper is rejected 
 
            since claimant was still quite symptomatic in favor of that 
 
            issued by Dr. Bender.  The various progress notes in the 
 
            record clearly show that claimant was not ready to resume 
 
            work in mid-March.
 
            
 
                 In obtaining treatment for the injury, claimant 
 
            incurred medical expenses as follows:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Cherokee Clinic                   $  85.00
 
                 Dr. Cooper                          125.00
 
                 Lumbar support                       78.75
 
            
 
            According to the records and claimant's testimony, he 
 
            personally paid the $22.90 balance of the charges at the 
 
            Cherokee Clinic which were not paid by Wilson.  No evidence 
 
            regarding payment of Dr. Cooper's bill appears in the 
 
            record.  Testimony from claimant and his spouse establishes 
 
            that they paid all of the $78.75 charge for the lumbar 
 
            support.
 
            
 
                 Claimant's testimony establishes that he traveled 630 
 
            miles in obtaining medical treatment for the injury.
 
            
 
                 *****
 
            
 
                                CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed January 3, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                  Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 2, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. 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).
 
            
 
                 Frank Krueger has proved, by a preponderance of the 
 
            evidence, that he sustained an injury which arose out of and 
 
            in the course of his employment on February 2, 1988.  The 
 
            injury was an aggravation of a preexisting condition.
 
            
 
                 Krueger was off work under medical treatment from 
 
            February 4 through April 25, 1988 as stipulated in the 
 
            prehearing report.  This entitles him to recover 11 and 5/7 
 
            weeks of ***** [temporary disability] compensation.  In view 
 
            of the stipulation in the prehearing report, the employer is 
 
            entitled to credit for the sick leave benefits which had 
 
            been paid in the gross amount of $2,253.98.
 
            
 
                 Since claimant has established that he sustained an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury which arose out of and in the course of his 
 
            employment, he is entitled under Iowa Code section 85.27 to 
 
            recover the expenses of medical treatment.  Those expenses 
 
            include the charges at Cherokee Clinic, with Dr. Cooper.  
 
            *****  The employer shall also reimburse claimant for 
 
            whatever amount was paid by claimant toward the charges made 
 
            by Dr. Cooper.  The employer shall pay any unpaid amount of 
 
            the charges from Dr. Cooper.  [The recommendation that 
 
            claimant use a lumbar support appears to be for "treatment" 
 
            of something other than claimant's temporary disability.  
 
            Therefore, the employer is not liable for the payment of the 
 
            lumbar support in this proceeding.]
 
            
 
                 Claimant traveled 630 miles in obtaining medical 
 
            treatment.  At the rate of $.21 per mile, he is entitled to 
 
            recover $132.30.  Iowa Code section 85.27; rule 343 IAC 
 
            8.1(2).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 2, 
 
            1988 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). 
 
            
 
                 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).
 
            
 
                 *****
 
            
 
                 [There is no reliable medical evidence in the record 
 
            that claimant's alleged permanent disability is causally 
 
            connected to his work injury.  Dr. Cooper found no evidence 
 
            of radiculopathy.  Dr. Garner was unable to  determine if 
 
            the work incident caused any permanent problems.  Dr. Blume 
 
            declined to give a rating of permanency without further 
 
            diagnostic tests.  His opinion on causal connection can be 
 
            given little weight for two reasons.  First, he suggested 
 
            further tests were needed.  Second, he qualifies his opinion 
 
            by indicating that all information is correct and it is 
 
            unclear what information he is referencing.  In addition, 
 
            Dr. Blume is an evaluating physician only.  Also, he did not 
 
            say that the injury was the cause of any permanent 
 
            disability.  Claimant has not presented any reliable medical 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            evidence that his work injury caused a permanent disability.  
 
            Claimant has clearly not met his burden of proof.]
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
 
 
                                   ORDER
 
 
 
            THEREFORE, it is ordered:
 
            
 
                 That the employer pay Frank Krueger eleven and 
 
            five-sevenths (11 5/7) weeks of compensation for temporary 
 
            total disability at the stipulated rate of two hundred 
 
            eighty-nine and 09/100 dollars ($289.09) per week payable 
 
            commencing February 4, 1988.  The employer is entitled to 
 
            credit against this award in the gross amount of two 
 
            thousand two hundred fifty-three and 98/100 dollars 
 
            ($2,253.98) for the sick pay benefits which were paid.
 
            
 
                 That the employer pay the claimant pursuant to Iowa 
 
            Code section 85.27 the amount of one hundred one and 65/100 
 
            dollars ($101.65) as reimbursement for medical expenses at 
 
            Cherokee Clinic, for transportation expenses, and whatever 
 
            amount the claimant paid toward satisfying the copayment and 
 
            deductible on the charges from Dr. Cooper.
 
            
 
                 That all past due amounts remaining unpaid after 
 
            application of the sick pay credit be paid in a lump sum 
 
            together with interest pursuant to Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                  That the employer file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                  ________________________________
 
                                           BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Mr. Dennis M. McElwain
 
            Attorneys at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                         5-1402.20; 5-1402.40; 5-1801;
 
                                         5-1803
 
                                         Filed November 9, 1992
 
                                         Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            FRANK KRUEGER,   
 
                        
 
                 Claimant,                           File No. 872760
 
                        
 
            vs.                                       A P P E A L
 
                        
 
            WILSON FOODS CORPORATION,                D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            5-1402.20
 
            Claimant's credibility was relied upon to establish injury 
 
            arising out of and in the course of employment despite 
 
            deficits in medical histories.
 
            
 
            5-1801
 
            Claimant awarded temporary total disability benefits for the 
 
            time he missed work.
 
            
 
            5-1402.40; 5-1803
 
            There was no reliable medical evidence that claimant's 
 
            injury caused any permanent disability.  Claimant failed to 
 
            meet his burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRANK KRUEGER,                :
 
                                          :
 
                 Claimant,                :         File No. 872760
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Frank 
 
            Krueger against his self-insured employer Wilson Foods 
 
            Corporation based upon an alleged injury of February 2, 
 
            1988.  The claimant seeks compensation for healing period, 
 
            permanent partial disability, payment of medical expenses 
 
            and reimbursement of transportation expenses.  The primary 
 
            issues to be determined are whether Krueger sustained an 
 
            injury on February 2, 1988 as he alleges and, if so, 
 
            determination of his entitlements to weekly compensation and 
 
            section 85.27 benefits.
 
            
 
                 The case was heard and fully submitted at Storm Lake, 
 
            Iowa on October 4, 1990.  The evidence consists of joint 
 
            exhibits 1 through 19 and testimony from Frank Krueger, 
 
            Delores Krueger and Keith Garner, M.D.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Frank Krueger is a 52-year-old married man who lives at 
 
            Holstein, Iowa.  He has been employed by Wilson Foods since 
 
            1959.  This is his first workers' compensation claim.  
 
            Krueger is found to be a fully credible witness, though his 
 
            aptitude as an historian is less than outstanding.  Krueger 
 
            is a 1955 high school graduate.  Prior to commencing work 
 
            for Wilson Foods in 1959, he worked for the railroad and 
 
            also performed road construction.
 
            
 
                 Krueger's health history is unremarkable, except for an 
 
            occurrence which began in 1979 when he began to experience 
 
            numbness and loss of control of his extremities.  He was 
 
            diagnosed as having a demyelinating condition.  He was taken 
 
            off work, treated and recovered.  Following his recovery, he 
 
            resumed all his prior work and nonwork activities.
 
            
 
                 On February 2, 1988, Krueger was performing his 
 
            customary job in the press room.  The work involved shaking 
 
            a piece of equipment referred to as a "tree" which held 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cooked hams in metal forms which were held together by 
 
            springs.  Removal of the hams from the forms was 
 
            accomplished by shaking the tree vigorously.  Krueger had 
 
            noticed some pain in his back for a few days prior to 
 
            February 2, 1988.  On February 2, while vigorously shaking 
 
            the tree, he experienced the onset of severe pain in his 
 
            lower back, a symptom which he had not previously 
 
            experienced.  He also experienced pain in his right leg and 
 
            difficulty walking.
 
            
 
                 Claimant consulted the plant physician Keith Garner, 
 
            M.D.  According to Dr. Garner, Krueger did not report any 
 
            injury, but did complain of back pain and difficulty with 
 
            his right foot.  Dr. Garner referred Krueger to Ronald A. 
 
            Cooper, M.D., the neurologist who had treated him for the 
 
            demyelinating condition in 1979 and 1980.  Dr. Cooper felt 
 
            that claimant exhibited no evidence of a radiculopathy.  He 
 
            concluded that claimant was having a mild exacerbation of 
 
            the demyelinating condition.  The history shown in Dr. 
 
            Cooper's report states that claimant had twisted his back on 
 
            Tuesday of that week and began noticing lumbar pain and pain 
 
            in his leg.  The history further reports that the pain was 
 
            resolved, but that claimant was continuing to drag his right 
 
            leg (exhibit 2).  Dr. Cooper reported on March 7, 1988 that 
 
            claimant's gait had improved and that he could return to 
 
            work on March 14, 1988 (exhibit 3).
 
            
 
                 Dr. Garner agreed with the assessment of the case which 
 
            had been made by Dr. Cooper.  He also stated, however, that 
 
            a demyelinating condition generally does not cause pain and 
 
            that the pain which claimant described could have been 
 
            caused by an injury.  Dr. Garner also agreed that arthritis 
 
            and degeneration could cause pain and that if a person with 
 
            those conditions experienced an injury, it would make the 
 
            pain worse.  Dr. Garner was unable to determine if the 
 
            February 2 incident had caused any permanent problems.
 
            
 
                 Krueger also sought treatment from his family 
 
            physician, William L. Bender, M.D.  Dr. Bender in turn 
 
            referred him to neurosurgeon Quentin J. Durward, M.D.  Dr. 
 
            Durward conducted diagnostic tests consisting of x-rays and 
 
            a CT scan of the lumbar spine.  He concluded that claimant 
 
            had acute lumbar radiculopathy, though there may have been 
 
            some contribution to the condition from the previous 
 
            demyelinating condition.  Dr. Durward found extensive 
 
            degenerative changes in claimant's spine.  He indicated that 
 
            claimant had made a dramatic recovery and should be 
 
            authorized to return to work.  He also recommended that 
 
            claimant obtain a lumbar corset (exhibits 7 and 8).
 
            
 
                 Dr. Bender agreed with the assessment of the case made 
 
            by Dr. Durward.  In his report, he states that if this 
 
            condition were similar to the one which had afflicted 
 
            claimant in 1980, the effects should have been bilateral.  
 
            Dr. Bender's explanation of the levels at which the 
 
            degenerative changes in claimant's spine were observed by 
 
            Dr. Durward is accepted as being correct.  Dr. Bender 
 
            released claimant to return to work on April 25, 1988 
 
            (exhibits 4 and 5).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was evaluated by Horst Blume, M.D., who 
 
            concluded that claimant had preexisting degenerative changes 
 
            in his spine which were aggravated by the February 2, 1988 
 
            injury.  He declined to assign a permanent impairment rating 
 
            (exhibit 8).
 
            
 
                 Claimant was also examined by Pat Luse, D.C., who felt 
 
            that claimant had sustained an injury in the nature of an 
 
            aggravation of a preexisting condition and assigned a ten 
 
            percent permanent impairment rating (exhibit 9).
 
            
 
                 It is found that Frank Krueger had preexisting 
 
            degenerative changes in his lumbar spine and that the 
 
            vigorous activity of shaking the tree on February 2, 1988 
 
            aggravated that preexisting condition.  There is a strong 
 
            possibility that the demyelinating condition also plays some 
 
            part in his symptomatology, although the symptoms did not 
 
            occur absent the trauma of February 2, 1988.
 
            
 
                 Claimant was off work commencing February 4, 1988 and 
 
            returned to work on April 26, 1988.  The earlier release for 
 
            March 14, 1988 which was issued by Dr. Cooper is rejected 
 
            since claimant was still quite symptomatic in favor of that 
 
            issued by Dr. Bender.  The various progress notes in the 
 
            record clearly show that claimant was not ready to resume 
 
            work in mid-March.
 
            
 
                 In obtaining treatment for the injury, claimant 
 
            incurred medical expenses as follows:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Cherokee Clinic                   $  85.00
 
                 Dr. Cooper                          125.00
 
                 Lumbar support                       78.75
 
            
 
            According to the records and claimant's testimony, he 
 
            personally paid the $22.90 balance of the charges at the 
 
            Cherokee Clinic which were not paid by Wilson.  No evidence 
 
            regarding payment of Dr. Cooper's bill appears in the 
 
            record.  Testimony from claimant and his spouse establishes 
 
            that they paid all of the $78.75 charge for the lumbar 
 
            support.
 
            
 
                 Claimant's testimony establishes that he traveled 630 
 
            miles in obtaining medical treatment for the injury.
 
            
 
                 At the present time, the claimant is steadily employed 
 
            and has experienced no reduction in his actual earnings or 
 
            rate of earnings as a result of the injury.  His current 
 
            employment situation seems stable and reasonably secure.  He 
 
            does, however, require the use of a corset.  He has a 
 
            residual level of symptomatology which has affected his 
 
            ability to perform many physical activities.  While it has 
 
            not actually caused him to lose income, it does affect the 
 
            number of positions which he is capable of successfully 
 
            performing.  The evidence from Dr. Luse regarding impairment 
 
            rating is given negligible weight since there are no other 
 
            ratings from any of the other physicians who have submitted 
 
            evidence in this case.  All of the other physicians are 
 
            deemed to be of a higher level of expertise than Luse.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 2, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. 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).
 
            
 
                 Frank Krueger has proved, by a preponderance of the 
 
            evidence, that he sustained an injury which arose out of and 
 
            in the course of his employment on February 2, 1988.  The 
 
            injury was an aggravation of a preexisting condition.
 
            
 
                 Krueger was off work under medical treatment from 
 
            February 4 through April 25, 1988 as stipulated in the 
 
            prehearing report.  This entitles him to recover 11 and 5/7 
 
            weeks of healing period compensation.  In view of the 
 
            stipulation in the prehearing report, the employer is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            entitled to credit for the sick leave benefits which had 
 
            been paid in the gross amount of $2,253.98.
 
            
 
                 Since claimant has established that he sustained an 
 
            injury which arose out of and in the course of his 
 
            employment, he is entitled under Code section 85.27 to 
 
            recover the expenses of medical treatment.  Those expenses 
 
            include the charges at Cherokee Clinic, with Dr. Cooper and 
 
            the lumbar support (exhibits 13, 14 and 15).  The employer 
 
            shall pay to claimant the sum of $101.65 representing 
 
            reimbursement of amounts paid by claimant.  The employer 
 
            shall also reimburse claimant for whatever amount was paid 
 
            by claimant toward the charges made by Dr. Cooper.  The 
 
            employer shall pay any unpaid amount of the charges from Dr. 
 
            Cooper.
 
            
 
                 Claimant traveled 630 miles in obtaining medical 
 
            treatment.  At the rate of $.21 per mile, he is entitled to 
 
            recover $132.30.  Iowa Code section 85.27; rule 343 IAC 
 
            8.1(2).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 2, 
 
            1988 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). 
 
            
 
                 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).
 
            
 
                 The sequence of events and the recommendations for 
 
            treatment and the lumbar support are sufficient to show the 
 
            existence of a causal connection between the injury and the 
 
            residual physical limitations.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            physical and mental ability of a normal man."
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The fact that claimant is required to wear a lumbar 
 
            support and has needed to curtail his physical activities 
 
            clearly establishes that some permanent disability resulted 
 
            from the injury.  An impairment rating is not always 
 
            necessary to establish the existence of permanent 
 
            disability.
 
            
 
                 There is no rating of permanent impairment or 
 
            particular activity restrictions in the record.  In the 
 
            absence of such, the industrial disability award is placed 
 
            at five percent.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay Frank 
 
            Krueger eleven and five sevenths (11 5/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            two hundred eighty-nine and 09/100 dollars ($289.09) per 
 
            week payable commencing February 4, 1988.  The employer is 
 
            entitled to credit against the healing period award in the 
 
            gross amount of two thousand two hundred fifty-three and 
 
            98/100 dollars ($2,253.98) for the sick pay benefits which 
 
            were paid.
 
            
 
                 IT IS FURTHER ORDERED that the employer pay the 
 
            claimant pursuant to section 85.27 the amount of one hundred 
 
            one and 65/100 dollars ($101.65) as reimbursement for 
 
            medical expenses at Cherokee Clinic and the lumbar support, 
 
            one hundred thirty-two and 30/100 dollars ($132.30) for 
 
            transportation expenses, and whatever amount the claimant 
 
            paid toward satisfying the copayment and deductible on the 
 
            charges from Dr. Cooper.
 
            
 
                 IT IS FURTHER ORDERED that defendant pay claimant 
 
            twenty-five (25) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of two hundred eighty-nine 
 
            and 09/100 dollars ($289.09) per week payable commencing 
 
            April 26, 1988.
 
            
 
                 IT IS FURTHER ORDERED that all past due amounts 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            remaining unpaid after application of the sick pay credit be 
 
            paid in a lump sum together with interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Mr. Dennis M. McElwain
 
            Attorneys at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.20; 5-1803
 
                           Filed January 3, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            FRANK KRUEGER, :
 
                      :
 
                 Claimant, :         File No. 872760
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            WILSON FOODS CORPORATION,     :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1402.20
 
            Claimant's credibility was relied upon to establish injury 
 
            arising out of and in the course of employment despite 
 
            deficits in medical histories.
 
            
 
            5-1803
 
            Claimant awarded healing period and five percent permanent 
 
            partial disability where injury was aggravation of 
 
            preexisting condition and there had been no loss of actual 
 
            earnings, no credible permanent impairment rating or precise 
 
            activity restrictions, but he was recommended to wear a 
 
            lumbar corset.
 
            
 
 
            
 
 
 
              
 
                          
 
                    
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL G. ONKEN,
 
         
 
              Claimant                                File No. 872762
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         MUSKIE TRADING POST,                         D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                        DEC 19 1989
 
         HAWKEYE SECURITY INSURANCE
 
         COMPANY,                                   INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Michael G. Onken against defendant employer Muskie Trading Post 
 
         and defendant insurance carrier Hawkeye Security Insurance 
 
         Company to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury sustained October 9, 1986.  This 
 
         matter came on for hearing before the undersigned in Davenport, 
 
         Iowa, on September 20, 1989.  The matter was considered fully 
 
         submitted at the close of hearing, although both parties 
 
         subsequently filed briefs.  The record in the proceeding consists 
 
         of claimant's exhibits 1 through 5, defendants' exhibit A, and 
 
         the testimony of claimant and Brian Garrett.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved at 
 
         hearing, the parties have stipulated:  That an employment 
 
         relationship existed between claimant and employer at the time of 
 
         the injury; that claimant sustained an injury on October 9, 1986, 
 
         arising out of and in the course of the employment; that the 
 
         injury caused a period of temporary disability commencing 
 
         November 11, 1986; that if the injury is found to have caused 
 
         permanent disability, claimant has suffered an industrial 
 
         disability to the body as a whole; that unmarried claimant with 
 
         three dependents had gross weekly earnings of $250.00 at the time 
 
         of his injury; that the medical expenses were incurred for 
 
         reasonable and necessary medical treatment and the provider of 
 
         services would testify in the absence of countervailing evidence 
 
         that the fees were reasonable; that defendants have paid claimant 
 
         50 weeks of compensation at the rate of $154.78 prior to 
 
                                                
 
                                                         
 
         hearing.
 
         
 
              Issues presented for resolution include:  Whether the work 
 
         injury caused permanent disability and the extent and 
 
         commencement date thereof; the extent of claimant's entitlement 
 
         to medical benefits; the extent of claimant's entitlement to 
 
         compensation for temporary total disability or healing period; 
 
         taxation of costs.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was 38 years old at the time of 
 
         hearing.  His educational background includes graduation from 
 
         high school and an associate of arts degree obtained from 
 
         Muscatine Community College in 1979.  Claimant's course of study 
 
         was in hazardous materials handling, although he has never been 
 
         employed in that field.
 
         
 
              Claimant testified to his work history both prior and 
 
         subsequent to his work injury.  He worked in a warehouse in high 
 
         school, operated a fork truck in a warehouse for Kent Feeds, 
 
         worked for numerous farmers, collected water samples for an 
 
         enterprise known as GPC, worked as circulation manager for a 
 
         newspaper known as The Rock Island Argus, worked as a patrol 
 
         officer for several small towns, took employment as a deputy 
 
         sheriff in Muscatine County, drove a truck for Crop Production 
 
         Services, was employed by Heinz, drove a truck for Terra 
 
         Chemical, and accepted employment with defendant.  All of these 
 
         jobs required physical labor and lifting.
 
         
 
              With defendant, claimant sold advertisements, worked on 
 
         photographs, worked on the payroll, and delivered bundles of 
 
         advertising inserts to carriers.  Some of the work was hard 
 
         physical labor involving boxes up to 70 pounds in weight.
 
         
 
              Claimant conceded a history of back problems.  His injury 
 
         occurred when he was unloading boxes of advertising inserts.  As 
 
         he picked up a box and turned, something "snapped" in his back, 
 
         reportedly driving him to his knees.  Claimant described 
 
         continuing to work until November, 1986, but ever worsening in 
 
         condition until he was stooped over in posture.  Claimant at that 
 
         time was laid off from his employment because of his inability to 
 
         continue handling the heavy work (defendants' brief concedes that 
 
         claimant was terminated because of his inability to return to 
 
         work after this injury).  Dr. Catalona's contemporaneous office 
 
         notes show that claimant reported being discharged on November 3, 
 
         1986.
 
         
 
              Claimant described seeing William Catalona, M.D., who had 
 
         treated him for many years.  Dr. Catalona performed surgery on 
 
         his back in November, 1986.  Afterwards, claimant was treated 
 
         with exercise and months of physical therapy.
 
         
 
              Claimant next became employed with Weideman Industries in 
 
         June or July, 1987.  Claimant is of the view that this was the 
 
                                                
 
                                                         
 
         first date he was able to return to work in regular employment. 
 
         The job was an inventory position in a warehouse.  Claimant began 
 
         working with light-duty work, but gradually increased his 
 
         lifting. However, he sustained another injury to his back when a 
 
         350-pound tank fell on him.  Claimant was then off work again for 
 
         months, but upon returning to work, injured his back yet again 
 
         while moving small engines.  Claimant settled a workers' 
 
         compensation claim against Weideman Industries by means of a 
 
         compromise special case settlement under Iowa Code section 
 
         85.35.
 
         
 
              Claimant has also had part-time employment at Muscatine 
 
         Community College as a.lounge attendant, as a substitute bus 
 
         driver for Muscatine School District, as the manager of a band, 
 
         and as a process server for local law firms.
 
         
 
              Claimant states that he is now unable to engage in physical 
 
         exertion because of the condition of his back.
 
         
 
              Claimant described his preexisting injuries as involving 
 
         pulled muscles in the back, a sprain when he fell on ice and a 
 
         twisted back while doing farm work.  Claimant agreed that Dr. 
 
         Catalona's deposition testimony was a complete summary of his 
 
         preexisting problems, but noted that he had always been able to 
 
         return to the same employment after his previous problems and 
 
         believed he suffered no permanent damage from any of the previous 
 
         incidents.
 
         
 
              Claimant noted that Dr. Catalona had been his physician for 
 
         some 30 years, but believed that he had not imposed any weight 
 
         limits prior to the subject injury.
 
         
 
              Claimant contrasted his pre-injury to post-injury condition: 
 
         He is now unable to play softball or bowl, is less able to ride 
 
         horses or motorbikes, and suffers pain that interferes with 
 
         hunting or fishing.  Claimant described his pain as occurring on 
 
         a daily basis and preventing him from sitting over two hours, 
 
         standing for prolonged periods, or driving a bus in excess of one 
 
         and one-half hours.
 
         
 
              Claimant stated that he had visited personally some 30 
 
         businesses seeking employment in the hazardous materials field. 
 
         Claimant indicated he was refused work, generally.on the basis of 
 
         his preexisting back problems.  Claimant is willing to relocate 
 
         to accept work in that field.
 
         
 
              With respect to his exhibit 4, a Muscatine General Hospital 
 
         bill of $117.80, claimant testified that the date (December 14, 
 
         1987) is erroneous.  He testified that the bill was incurred for 
 
         treatment of the subject back injury.
 
         
 
              On cross-examination, claimant testified to having his foot 
 
         amputated and reattached without residual injury in 1956.  
 
         Claimant testified to breaking his hand in 1963, suffering 
 
         cartilage damage in his knee, injuring his back while shoveling 
 
                                                
 
                                                         
 
         corn in 1976, injuring his back in a slip. and fall in 1982, 
 
         injuring or straining his back in 1984, and again in June, 1985 
 
         while employed with previous employers.
 
         
 
              Claimant described his second Weideman's injury as occurring 
 
         when he was lifting numerous 60-80 pound engines and carrying 
 
         them some 15-20 feet for stacking.
 
         
 
              Claimant stated that he has never been convicted of a 
 
         felony, but did plead guilty to a charge of fraudulent practices 
 
         in the year 1985.
 
         
 
              Brian Garrett testified to being a long-term friend of 
 
         claimant.  He testified that claimant has been physically active 
 
         his entire life, but has been unable to engage in sports since 
 
         the subject injury.  He further testified that claimant has 
 
         continued looking for work after the injury.
 
         
 
              William Catalona, M.D., testified by deposition taken 
 
         September 12, 1989.  In addition, the deposition,contained 
 
         Catalona exhibit A, a copy of his office notes relating to 
 
         claimant.
 
         
 
              In reviewing claimant's medical history, Dr. Catalona noted 
 
         that claimant injured his lower back shoveling corn on July 22, 
 
 
 
                            
 
                                                         
 
         1986.  The injury was to the lumbar area, essentially the same 
 
         area as the subject injury.  He further testified that he saw 
 
         claimant on June 29, 1982, after claimant injured his lower back 
 
         in a slip and fall at home on the day before.  Claimant admitted 
 
         at that time to previous episodes of back pain, especially 
 
         driving a highway patrol car.  This injury was also to 
 
         essentially the same area.  Dr. Catalona described finding some 
 
         instability of claimant's low back, meaning that one segment of 
 
         the back moves abnormally on the other.  As to claimant's 
 
         condition at that time, Dr. Catalona testified:
 
         
 
              Q.  Now, did he have any permanent injury at that point in 
 
              time?
 
         
 
              A.  Permanent injury, you -- I would need to know -- and I 
 
              don't know that he had a permanent injury.  I do know that 
 
              he had a condition.  How that condition derived, I don't 
 
              know.  I can only surmise that he has a permanent injury.  I 
 
              don't know.  All I know is that he has a condition which may 
 
              or may not be permanent.
 
         
 
              Q.  Do you know whether he had any disability or are we 
 
              saying the same thing?
 
         
 
              A.  I would say that he had a disability.  I would consider 
 
              him to be restricted in doing certain things with his back.
 
         
 
              Q.  And this was what year?
 
         
 
              A.  1982.
 
         
 
         (Dr. Catalona deposition, page 7, line 22 through page 8, line 
 
         12)
 
         
 
         
 
              Dr. Catalona further testified that he saw claimant on 
 
         August 21, 1984, when he was referred after a low back injury 
 
         suffered while palletizing heavy cases for Heinz Company.  The 
 
         injury was again to the same area of the back.  Dr. Catalona 
 
         recommended restricted lifting and emphasized proper lifting 
 
         technique.
 
         
 
              Dr. Catalona also saw claimant on June 28, 1985, when he 
 
         presented for low back pain which claimant related to straining 
 
         his back while loading 50-pound bags of fertilizer at Terra 
 
         Chemical.  Again, the injury was to the same area.  As to 
 
         claimant's condition of permanency, Dr., Catalona testified:
 
         
 
              Q.  Did he have at that time a permanent disability?
 
         
 
              A.  Again you would have to define disability in a 
 
              particular type of work so he might not -- he might be 
 
              disabled in doing some type of work, but not in doing other 
 
              kind of work.
 
         
 
                                                
 
                                                         
 
              Q.  If you were going to rate him at that time in terms of 
 
              the whole man, could you possibly have done that at that 
 
              time?
 
         
 
              A.  Yes.
 
         
 
              Q.  And do you know what his disability was?
 
         
 
              A.  Considering -- yes.
 
         
 
              Q.  What was that?
 
         
 
              A.  Considering his past history and my repeated 
 
              examinations, I would rate him at 10 to 15 percent 
 
              impairment of the whole man insofar as doing heavy labor.
 
         
 
              Q.  Will you tell the Assistant Industrial Commissioner 
 
              again what time that was?
 
         
 
              A.  Did I tell?
 
         
 
              Q.  Will you?  See, this is going into a deposition that he 
 
              or she will be reading.
 
         
 
              A.  Well, if I'm asked the question, I could answer that 
 
              hypothetical question.
 
         
 
              Q.  Well,.I just want to know what date this was.
 
         
 
              A.  The date is 6-28-85.
 
         
 
              Q.  And is it your opinion based upon reasonable medical 
 
              certainty that Mike Onken had a disability rating of the 
 
              whole man of 10 to 15 percent?
 
         
 
              A.  Yes.
 
         
 
              Q.  What's your reasons for that, Doctor?
 
         
 
              A.  Well, because of my experience in examining him and 
 
              treating him on several occasions for low back injuries.
 
         
 
         (Dr. Catalona deposition, page 12, line 5 through page 13, line 
 
         15)
 
         
 
              Dr. Catalona also described seeing claimant because of the 
 
         subject injury on October 9, 1986.  Examination showed:
 
         
 
              Q.  Did you see anything different this time than from his 
 
              previous injuries?
 
         
 
              A.  No, I saw essentially the same that I had seen 
 
              previously, namely and specifically, the instability of his 
 
              low back and now some narrowing of the intervertebral joint 
 
              space at L-4 between L-4 and L-5 and L-5 and S-1.
 
                                                
 
                                                         
 
         
 
              Q.  Could you relate that to this particular injury or would 
 
              it have been related to his total medical history to his 
 
              back?
 
         
 
              A.  To the total history of his -- natural history of his 
 
              back problem.
 
         
 
              Q.  So you couldn't point to the injury in September of 1986 
 
              --
 
         
 
              A.  Not entirely.
 
         
 
              Q.  -- as causing his condition as you saw it at that time?
 
         
 
              A.  Not entirely.
 
         
 
              Q.  Is there any way to differentiate it or tell which is 
 
              new and which is old?
 
         
 
              A.  No, sir, not in this case.
 
         
 
         (Dr. Catalona deposition, page 14, line 19 through page 15, line 
 
         14)
 
         
 
              Dr. Catalona took CT scans and myelogram which showed a 
 
         herniated disc at L4,5 with a bony spur encroaching or pinching 
 
         the nerve at that level.  However, Dr. Catalona indicated that 
 
         the bony spur would have formed over a period of time and would 
 
         not be specifically related to the subject injury.
 
         
 
              Dr. Catalona's notes indicate that a laminectomy and 
 
         excision of herniated and sequestered intervertebral disc was 
 
         performed on November 26, 1986.
 
         
 
              Dr. Catalona testified that the surgery resulted in a good 
 
         recovery.  When asked how long it took claimant to recover, Dr. 
 
         Catalona did not answer directly, but indicated that an average 
 
         recovery would be about four months.  Dr. Catalona's notes state: 
 
         "Agreeable to 4 mos healing period."  On March 12, 1987, Dr. 
 
         Catalona rated claimant as suffering a 10 percent impairment of 
 
         the whole person  When asked how much of that disability was as a 
 
         result of the subject injury and whether or not any part of that 
 
         could be related to the previous injuries, Dr. Catalona noted 
 
         that the condition was cumulative and that the injuries "all 
 
         contribute to a progressive impairment."
 
         
 
              Dr. Catalona testified that claimant was seen on October 19, 
 
         1987, after he suffered an injury lifting a 350-pound object for 
 
         another employer.  As to claimant's limitations, he testified 
 
         with respect to the 1987 injury:
 
         
 
              Q.  What did you do for him at that time?
 
         
 
              A.  Well, after examination and x-rays, in which actually 
 
                                                
 
                                                         
 
                   there was no integral change from previous x-rays, I talked 
 
              to him emphasizing the importance of proper use of his back 
 
              and reminded him of his limitations and emphasized avoiding 
 
              heavy lifting, bending, and twisting.
 
         
 
              Q.  The same thing that you told him over and over again 
 
              since 1982?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Or really before that?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  And did he follow those instructions?
 
         
 
              A.  Well, I'd have to look in the future in my records and I 
 
              -- I think that it was at that time that he realized that he 
 
              could not do any heavy work and I think from that point on 
 
              he complied with -- with the recommendations of proper use 
 
              of his back.
 
         
 
              Q.  Doctor, did you later rate him for workers' comp 
 
              purposes as to his disability?
 
         
 
              A.  I'm reviewing my record.  Yes, I did.
 
         
 
              Q.  What did you rate him?
 
         
 
              A.  On 3-3-88 I rated him at 15 percent permanent impairment 
 
              of the whole man.
 
         
 
              Q.  How much of that could you relate to the previous 
 
     
 
                            
 
                                                         
 
              injuries including the Muskie Trading Post injury and 
 
              lifting this 350 pound weight?
 
         
 
              A.  Again this is a cumulative impairment and it would be 
 
              spread out over the various injuries.
 
         
 
              Q.  So based upon a reasonable medical certainty it would be 
 
              impossible to tell which injury caused the damage; is that 
 
              right?
 
         
 
              A.  I think it would be better to say that it was 
 
              cumulative-and that you would relate it to repeated -- the 
 
              effect of the repeated injuries, each adding to a degree of 
 
              impairment.
 
         
 
         (Dr. Catalona deposition, page 18, line 12 through page 19, line 
 
         24)
 
         
 
              Dr. Catalona also testified to seeing claimant on a number 
 
         of occasions in 1988 for low back pain, most recently on August 
 
         24, 1988.
 
         
 
              Again as to limitations or restrictions, Dr. Catalona 
 
         testified:
 
         
 
              Q.  Did you place any restrictions or advise Mr. Onken as to 
 
              any restrictions on his physical activity after that 
 
              surgery?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Could you tell us what those limitations were?
 
         
 
              A.  It's routine following.such an operation to warn the 
 
              patient of recurring herniation or even new herniations of 
 
              the intervertebral discs and we stress mechanics of the back 
 
              and point out to them that certain motions of the back 
 
              contribute to pressures and strains on the intervertebral 
 
              disc and the joints and that they should avoid these motions 
 
              and strains.
 
         
 
              Q.  Was he limited in any specific amount of weight that he 
 
              was supposed to lift?
 
         
 
              A.  I would -- the restriction varies, but generally it's in 
 
              the area of 20 to 25 pounds and sometimes less, but rarely 
 
              more than 25 pounds.
 
         
 
              Q.  Would that be a permanent restriction?  I mean, this 
 
              isn't something he could work out of by increasing his 
 
              strength or anything?
 
         
 
              A.  In my opinion I think that would be a permanent 
 
              impairment considering his past history.
 
         
 
                                                
 
                                                         
 
              Q.  The other restrictions that you mentioned applying to 
 
              him in August of '88, would those be pretty much the same as 
 
              would apply to him back in March of '87, I think it is?
 
         
 
              A.  If I understand you correctly, you're asking me if these 
 
              restrictions would have been the same for the injury of 9 
 
              October 1986 as it would be for October '87?
 
         
 
              Q.  I guess.what I was trying to say -- and I didn't say it 
 
              very well -- was that in August of '88 you gave him a letter 
 
              to return to work and specified restrictions, such as, 
 
              weight lifting, infrequent bending, stooping, twisting, and 
 
              so forth, and what I'm wondering is whether those 
 
              restrictions would have also been applicable following the 
 
              surgery and following his permanency rating which you gave 
 
              him sometime in March of 1987?
 
         
 
              A.  Yes.  My answer to that is yes, they would have been the 
 
              same.
 
         
 
              Q.  So he was permanently disabled to some extent or 
 
              permanently impairment to some extent in March of 1987 when 
 
              you gave him a rating of 10 percent?
 
         
 
              A.  Yes sir.
 
         
 
         (Dr. Catalona deposition, page 27, line 3 through page 29, line 
 
         1)
 
         
 
              When asked more specifically as to the end of claimant's 
 
         healing period, Dr. Catalona testified:
 
         
 
              Q.  In reference to Mr. Onken's healing period, I think you 
 
              said that four months is about the average or do you have 
 
              any records as to when Mr. Onken actually stopped making any 
 
              improvement?
 
         
 
              A.  My -- my record documents that Mr. Onken agreed to a 
 
              four month healing period since he did not return to his 
 
              previous job and I can read that to you.  It's documented.
 
         
 
         (Dr. Catalona deposition, page 31, line 14 through line 21)
 
         
 
              Dr. Catalona's office notes show that claimant was 
 
         instructed in proper use of back with "limit lifting" on August 
 
         21, 1984.
 
         
 
              Also in evidence is a notice of lien in favor of Muscatine 
 
         General Hospital claiming a lien for services rendered as the 
 
         result of an accident on or about December 14, 1987 in the amount 
 
         of $117.80.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
                                                
 
                                                         
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32,   254 N.W. 35, 38 (1934) 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  (Citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that his injury 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 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).
 
         
 
              The parties have stipulated that claimant sustained an 
 
         injury arising out of and in the course of his employment and 
 
         that the injury caused temporary disability.  This can either be 
 
         temporary total disability (if no permanent disability is found) 
 
         or healing period (if permanency is found).  Since this decision 
 
         finds claimant has suffered a permanent disability, his healing 
 
         period must be considered pursuant to Iowa Code section 85.34(1).  
 
         The statute provides that healing period begins on the date of 
 
         injury and continues until such time as the employee has returned 
 
         to work, it is medically indicated that significant improvement 
 
         from the injury is not anticipated, or until the employee is 
 
         medically capable of returning to substantially similar 
 
         employment, whichever first occurs.
 
         
 
              In this case, it is stipulated that claimant sustained his 
 
         injury on October 9, 1986.  However, claimant was able to 
 
 
 
                          
 
                                                         
 
         continue working despite pain until he was discharged by 
 
         defendant Muskie Trading Post.  The best evidence in this record 
 
         as to the date of that occurrence is Dr. Catalona's 
 
         contemporaneous note showing claimant reported that he was 
 
         discharged on November 3, 1986. Although the statute specifies 
 
         that healing period begins with the date of injury, this is 
 
         inconsistent with a situation where the injury did not cause 
 
         immediate total disability.  Claimant's action for healing period 
 
         benefits should not be said to have accrued until he actually 
 
         left work.  Here, defendant's decision that claimant was no 
 
         longer able to work to its satisfaction is an appropriate 
 
         measurement for the beginning of healing period: November 3, 
 
         1986.
 
         
 
              Claimant takes the position that his healing period should 
 
         end only when he obtained other work in June or July, 1987. 
 
         However, Dr. Catalona has opined that claimant would have a 
 
         four-month healing period and, more significantly, elected to 
 
         rate claimant's impairment on March 12, 1987.  When a physician 
 
         is able to issue an impairment rating, in the absence of evidence 
 
         to the contrary it is reasonable to infer that significant 
 
         improvement from the injury is not anticipated.  Therefore, March 
 
         12, 1987 is held to be the date that significant improvement from 
 
         the injury was no longer anticipated.  Thus, healing period ends 
 
         on that date, a total of 18 weeks, 4 days.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment.because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
                                                
 
                                                         
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              It has been stipulated by the parties that if permanent 
 
         disability be found, claimant has sustained an industrial 
 
         disability to the body as a whole.  What is that disability?  As 
 
         a starting point, it is not appropriate to measure claimant's 
 
         present condition as opposed to his condition prior to the work 
 
         injury.  That is so because he has suffered at least two 
 
         additional back injuries since returning to work with a different 
 
         employer.  At least one of those injuries has been shown to have 
 
         resulted in a workers' compensation claim culminating in a 
 
         compromise special case settlement under Iowa Code section 85.35. 
 
         There is no evidence in the record that claimant's subsequent 
 
         injuries are causally connected to the work injury under review. 
 
         Therefore, it is necessary to compare claimant's condition at the 
 
         close of.his healing period with his pre-injury condition in 
 
         order to determine the extent of industrial disability caused by 
 
         the subject work injury.
 
         
 
              Two important factors normally considered in determining 
 
         industrial disability are the extent of functional impairment 
 
         caused by the injury and medical restrictions or limitations 
 
         imposed by reason of the injury.
 
         
 
              In this case, claimant has sustained no additional 
 
         functional impairment by reason of his work injury.  As has been 
 
         seen, Dr. Catalona (the only physician to issue an impairment 
 
         rating) determined on March 12, 1987 that claimant had sustained 
 
         an impairment of 10 percent of the whole man.  However, Dr. 
 
         Catalona also opined that claimant had sustained a disability 
 
         rating of 10 to 15 percent of the whole man as early as June 28, 
 
         1985.  That impairment rating was based on preexisting injuries 
 
         to the same part of claimant's back.  Therefore, it is obvious 
 
         that the subject injury did not increase claimant's physical 
 
                                                
 
                                                         
 
         impairment, at least on a percentage basis as expressed by Dr. 
 
         Catalona.  Dr. Catalona also rated claimant as having a 15 
 
         percent impairment on March 3, 1988, following a subsequent 
 
         injury to the same part of claimant's back, for which claimant 
 
         was seen on October 19, 1987.
 
         
 
              With respect to the medical restrictions imposed on claimant 
 
         by Dr. Catalona, it is clear that no additional restrictions were 
 
         imposed by reason of the subject injury.  Dr. Catalona imposed 
 
         restrictions as early as 1982 by reason of claimant's back 
 
         condition.  Dr. Catalona's office notes show that claimant was 
 
         instructed in the proper use of back with "limit lifting" on 
 
         August 21, 1984.  Dr. Catalona also testified that he was unable 
 
         to relate claimant's condition in September, 1986 to the subject 
 
         injury, as opposed to his prior injuries.  Dr. Catalona testified 
 
         with respect to claimant's limitations imposed after his 1987 
 
         injury that the restrictions were "the same thing that you told 
 
         him over and over again since 1982."
 
         
 
              Although claimant has no additional physical impairment or 
 
         medical restrictions resulting from his work injury, there are 
 
         factors in evidence supporting an award of industrial disability. 
 
         The primary factors are two in number:  Claimant underwent 
 
         surgery following the work injury and he was discharged from 
 
         employment because of his inability to perform the job following 
 
         his injury.
 
         
 
              CT scans and a myelogram showed a herniated disc at L4,5 
 
         with a bony spur encroaching or pinching the nerve at that level.  
 
         A laminectomy and excision of the herniated disc was performed on 
 
         November 26, 1986.  Although the bony spur itself would have 
 
         formed over a period of time and would not be specifically 
 
         related to the subject injury, according to the physician, it is 
 
         significant that claimant was able to continue heavy physical 
 
         work following his previous injuries, while he was required to 
 
         undergo serious back surgery immediately following the subject 
 
         injury. That is to say, the subject injury aggravated and lighted 
 
         up claimant's condition, requiring surgery that had not been 
 
         necessary before the injury.  Even though claimant did not 
 
         sustain additional physical impairment and was not given 
 
         additional medical restrictions, he has sustained an industrial 
 
         disability because of his lessened attractiveness to potential 
 
         employers resulting from his history of back surgery.
 
         
 
              In addition, claimant lost his job because of this injury. 
 
         Such a refusal to give work to a claimant after he suffers a work 
 
         injury may justify an award of industrial disability benefits. 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
         Chewning v. Morse Chain Rubber Div., II Iowa Industrial 
 
         Commissioner Reports 88 (App. Decn. 1982).
 
         
 
              Considering the record as a whole and these factors in 
 
         particular, it is held that claimant has sustained an industrial 
 
         disability by reason of the subject work injury of 15 percent, or 
 
         75 weeks.
 
                                                
 
                                                         
 
         
 
              Claimant also seeks medical benefits of $117.80 for a bill 
 
         accrued with Muscatine General Hospital.  The lien filed by 
 
         Muscatine General Hospital notes that the services were rendered 
 
         as the result of an accident on or about December 14, 1987.  
 
         While claimant suggests that the lien is incorrect and that the 
 
         services were actually related to the subject injury, it should 
 
         be noted that claimant's credibility is suspect.  After all, he 
 
         has only recently been convicted of a charge of fraudulent 
 
         practices, although this was not a felony.  Considering further 
 
         that the record does not contain any evidence as to what services 
 
         were rendered, whether they were necessary, or otherwise related 
 
         to the work injury, it is held that claimant has failed to meet 
 
         his burden of proof on this issue.
 
         
 
              It has been stipulated that on the date of his injury, 
 
         claimant was single, entitled to three exemptions, and had 
 
         average gross weekly earnings of $250.00.  Pursuant to the "Guide 
 
         to Iowa Workers' Compensation Claim Handling" published by the 
 
         Division of Industrial Services and effective July 1, 1986, an 
 
         individual so situated has a weekly compensation rate of 
 
         $162.35.
 
         
 
                               FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant sustained an injury to his back 
 
         arising out of and in the course of his employment with Muskie 
 
         Trading Post on October 9, 1986:
 
         
 
              2.  By reason of his work-related injury, claimant was 
 
 
 
                               
 
                                                         
 
         discharged on November 4, 1986.
 
         
 
              3.  Claimant's physician opined on March 12, 1987 that 
 
         claimant had been impaired to the extent of ten percent of the 
 
         whole person.
 
         
 
              4.  Claimant had preexisting back injuries; he did not 
 
         sustain additional functional impairment because of the subject 
 
         back injury nor was he issued more stringent medical restrictions 
 
         by reason of that injury.
 
         
 
              5.  As stipulated, claimant had gross weekly earnings of 
 
         $250.00, he was single and entitled to three exemptions on the 
 
         date of his work injury.
 
         
 
              6.  The parties have stipulated that if claimant sustained 
 
         permanent disability, it is an industrial disability to the body 
 
         as a whole.
 
         
 
              7.  Claimant has failed to establish that his medical bill 
 
         with Muscatine General Hospital is related to the subject work 
 
         injury.
 
         
 
              8.  Claimant's credibility is suspect because of his 1985 
 
         conviction of fraudulent practices.
 
         
 
              9.  Claimant's work injury has caused a permanent diminution 
 
         of his earning capacity because he underwent back surgery and 
 
         because he was discharged by this employer due to the work 
 
         injury, and his resultant inability to perform his job.
 
         
 
              10.  As stipulated, defendants paid claimant 50 weeks of 
 
         compensation at the rate of $154.78 prior to hearing.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment on October 9, 1986.
 
         
 
              2. Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         November 3, 1986 through March 12, 1987 (18 weeks, 4 days).
 
         
 
              4.  Claimant's injury has directly caused him permanent 
 
         partial disability of 15 percent of the body as a whole, the 
 
         commencement date being March 13, 1987.
 
         
 
              5.  Claimant has failed to establish his entitlement to 
 
         medical benefits.
 
         
 
              6.  Defendants are entitled to credit for all benefits paid 
 
                                                
 
                                                         
 
         voluntarily to claimant prior to hearing.
 
         
 
              7.  Claimant's weekly rate of compensation is $162.35.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant eighteen point five 
 
         seven one (18.571) weeks of healing period benefits at the rate 
 
         of one hundred sixty-two and 35/100 dollars ($162.35) per week, 
 
         totalling three thousand fifteen and 00/100 dollars ($3,015.00).
 
         
 
              Defendants are to pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability at the rate of one hundred 
 
         sixty-two and 35/100 dollars ($162.35) per week, totalling twelve 
 
         thousand one hundred seventy-six and 25/100 dollars 
 
         ($12,176.25).
 
         
 
              Defendants shall be entitled to credit for all benefits 
 
         voluntarily paid to claimant prior to hearing.
 
         
 
              As all benefits have accrued as of the date of this 
 
         decision, they shall be paid in a lump sum together with 
 
         statutory interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed to defendants pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 19th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David W. Newell
 
         Attorney at Law
 
         323 East 2nd Street
 
         P.O. Box 175
 
         Muscatine, Iowa  52761
 
         
 
         Mr. J. W. Conway
 
         Ms. Marie Prince
 
                                                
 
                                                         
 
         Attorneys at Law
 
         210 Cedar Street
 
         P.O. Box 237
 
         Muscatine, Iowa  52761
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803, 1807
 
                                            Filed December 19, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL G. ONKEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 872762
 
         MUSKIE TRADING POST,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         HAWKEYE SECURITY INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803, 1807
 
         
 
              Although claimant had no increased functional impairment or 
 
         medical restrictions following back injury, he did have 
 
         industrial disability because back surgery made him less 
 
         attractive to potential employers, and because defendant 
 
         discharged him due to his resultant inability to perform the 
 
         work.
 
 
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARIA M. NATERA,
 
         
 
              Claimant,
 
         
 
                                         File.No. 872768
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         LOUIS RICH COMPANY,
 
                                         D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Maria M. 
 
         Natera, claimant, against Louis Rich Company, employer 
 
         (hereinafter referred to as Louis Rich), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on June 4, 
 
         1987.   On June 15, 1989, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. An employer-employee relationship existed between 
 
         claimant and Louis Rich at the time of the alleged injury.
 
         
 
              2. Claimant is seeking temporary total disability or healing 
 
         period benefits from November 23, 1987 through May 22, 1988 and 
 
         defendants agree that she was not working during this period of 
 
         time.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 2
 
         
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $181.78.
 
         
 
              5. The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and causally connected to the medical 
 
         condition upon which the claim is based but that the issue of 
 
         their causal connection to a work injury remains at issue.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I.  Whether the issue of a work injury is precluded by a 
 
         prior decision of a job service administrative law judge;
 
         
 
              II.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              III.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              IV.  The extent of claimant's entitlement to weekly benefits 
 
         for disability; and,
 
         
 
              V.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was reviewed and considered in arriving at this 
 
         decision.  Any conclusions about the evidence received contained 
 
         in the following statement shall be viewed as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that she worked for Louis Rich from 
 
         September 1981 until November 22, 1987 as a laborer in a turkey 
 
         meat processing plant.  She stated that her duties initially 
 
         consisted of assembly line work in the packaging department 
 
         placing packages into vacuum machines.  Although repetitive, this 
 
         work involved objects weighing no more than two pounds each but 
 
         claimant handled over a thousand of these packages each day.  For 
 
         approximately one year before the alleged work injury, claimant 
 
         was assigned to the slic-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 3
 
         
 
         
 
         ing department rotating between boxing packages of meat and 
 
         palletizing the filled boxes.  Claimant explained that this work 
 
         was more physical than her job in the packaging department, 
 
         especially the palletizing job which required rapid, repetitive 
 
         lifting of three or four boxes at a time with a combined weight 
 
         of more than 30 pounds.  According to the stipulated rate of 
 
         compensation, claimant was earning between $6.00 and $7.00 per 
 
         hour at the time of the alleged injury.
 
         
 
              Claimant testified that while performing the boxing and 
 
         palletizing work, she began to experience problems with recurrent 
 
         pain in both of her shoulders radiating across and down her back.  
 
         Claimant told her physicians that the pain had begun in February 
 
         but became worse in May 1987.  Claimant sought treatment for this 
 
         pain in June of 1987 from the company physician, William 
 
         Catalona, MD., an orthopedic surgeon.  Dr. Catalona diagnosed 
 
         claimant was suffering from overuse syndrome and he prescribed 
 
         anti-inflammatory medication and light duty work.  When claimant 
 
         failed to improve from these treatment modalities, he referred 
 
         claimant to the Rheumatology Clinic of the University of Iowa 
 
         Hospitals and Clinics.  Jane Morgan, M.D., on the staff of the 
 
         clinic, began treating claimant over the next several months for 
 
         bilateral shoulder pain.  Dr. Morgan likewise diagnosed overuse 
 
         syndrome which she felt was "probably related to work situation."   
 
         In July 1987, Dr. Morgan diagnosed fibromyalgia and she treated 
 
         claimant with heat and ice therapy, range of motion exercises, 
 
         medication and continued light duty work at Louis Rich.  Upon Dr. 
 
         Morgan's advice claimant was taken off work beginning on November 
 
         22, 1987.  Claimant has not returned to work since that time upon 
 
         the advice of Dr. Morgan.  In December 1987, claimant was 
 
         referred to the University Orthopedic Department which found no 
 
         orthopedic abnormalities and whose staff concurred with the 
 
         diagnoses of Dr. Morgan.
 
         
 
              In December of 1987, Dr. Morgan explained in one of her 
 
         reports that fibromyalgia is not a form of arthritis but a 
 
         condition characterized by chronic muscle tightness and soft 
 
         tissue tenderness.  Dr. Morgan states that this may be 
 
         precipitated by repetitive activity such as factory work.  Dr. 
 
         Morgan felt that claimant's work at Louis Rich definitely 
 
         aggravated and probably precipitated claimant's fibromyalgia.  
 
         According to the doctor, claimant's condition is permanent and 
 
         that she should not return to work at Louis Rich or any other 
 
         place which would require lifting over 10 pounds or repetitive 
 
         movement of her shoulders and arms.  The doctor stated that there 
 
         is no AMA Guidelines to rate a fibromyalgia condition but she 
 
         estimated that the rating of permanent partial would be 10 
 
         percent to the body as a whole.  However, Dr. Morgan stated that 
 
         due to the absence of a rating guide there was no scientific 
 
         basis for the rating.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 4
 
         
 
         
 
              William Miely, M.D., an orthopedic surgeon from the 
 
         university of  Iowa Hospitals and Clinics, testified by 
 
         deposition that he could not causally relate claimant's 
 
         difficulties to her work at Louis Rich with any certainty, but 
 
         admitted that the diagnosis and treatment of fibromyalgia 
 
         problems lie in the Rheumatology Department of the University of 
 
         Iowa Hospitals and Clinics.  He stated the treatment and 
 
         diagnosis of such a condition is out of his specialty.
 
         
 
              Claimant testified that today she still has the same 
 
         problems which existed in 1987.  The safety and security manager 
 
         at Louis Rich testified that the boxes of meat handled by 
 
         claimant weighed from three to eight pounds but the manager did 
 
         not state whether claimant was required to lift more than one box 
 
         at a time.  This manager also testified that claimant did not 
 
         return to work after November 1987, but had she done so, she 
 
         would have been provided with suitable work.  However, claimant 
 
         testified that she did return to Louis Rich to seek employment 
 
         within her work restrictions after being denied unemployment 
 
         compensation benefits.  When she did so, Louis Rich refused to 
 
         offer suitable work according to claimant.  Claimant then 
 
         reapplied for unemployment compensation benefits and was granted 
 
         such benefits according to the exhibits received into evidence.
 
         
 
              The Iowa State Department of Vocational Rehabilitation 
 
         submitted a report indicating that claimant dropped out of the 
 
         ninth grade in high school but has since earned her GED.  With 
 
         the assistance of vocational counselors, claimant has enrolled in 
 
         and is continuing to pursue a training course at a local 
 
         community college to retrain herself for clerical work.  She is 
 
         scheduled to complete this training this summer.  Claimant 
 
         testified that she is 31 years of age.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From her demeanor while testifying, claimant will be 
 
         found credible.
 
         
 
              I.  Defendants raise the doctrine of issue preclusion.  
 
         According to the decision of a job service hearing officer, no 
 
         evidence was submitted to substantiate the claimthat the shoulder 
 
         condition was work related when   she appealed her denial of 
 
         unemployment compensation benefits.  The doctrine of issue 
 
         preclusion prevents parties to a prior action in which a judgment 
 
         has been entered from relitigating in a subsequent action issues 
 
         raised and resolved in the previous action.  Israel v. Farmers 
 
         Mut. Ins. Ass'n of Iowa, 339 N.W.2d 143 (Iowa 1983) ; Hunter v. 
 
         City of Des Moines, 300 N.W.2d 121 (Iowa 1981).  It is well 
 
         settled that doc-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 5
 
         
 
         
 
         trines of claim preclusion and issue preclusion (formerly termed 
 
         res judicata) are applicable in appropriate circumstances to 
 
         administrative, quasa-judical judications.  BD. of Sup'rs, 
 
         Carroll Cty. v.Chi. & N.W. Transp. Co., 260 N.W.2d 813, 815 (Iowa 
 
         1977).  See also Greer v. City of Des Moines, 514 F. Supp. 1218 
 
         (S.D. Iowa 1981); compare   Zywicki v. Moxness Products. Inc., 
 
         Div. of Versa Tech., Inc., (D.C. Wisc.1985).  An allegation that 
 
         an issue is precluded by a prior adjudication is an affirmative 
 
         defense.  Israel, 339 N.W.2d at 143.  Therefore, defendants 
 
         herein have the burden to establish by a preponderance of the 
 
         evidence that the determination in this proceeding is precluded 
 
         by findings of fact contained in the prior final administrative 
 
         decision involving claimant's unemployment compensation benefits.
 
         
 
              Before an issue can be precluded when there is identity of 
 
         the parties in the two proceedings, the following four 
 
         prerequisites must be established:
 
         
 
              1.  The issue concluded must be identical.
 
              
 
              2.  The issue must have been raised and litigated in
 
                  a prior action.
 
              
 
              3.  The issue must have been material and relevant to
 
                  the deposition of the prior action.
 
              
 
              4.  The determination made of the issue in the prior
 
                  action must have been necessary and essential to
 
                  the resulting judgment.
 
              
 
              See Hunter, 300 N.W.2d at 125 and 126.
 
         
 
              However, the Iowa Supreme Court has adopted exceptions even 
 
         when the four prerequisites are met:
 
         
 
              1.  A new determination of the issue is warranted by
 
                  differences in the quality and extensiveness of the
 
                  procedures followed in the two courts or by factors
 
                  relating to the allocation of jurisdiction between
 
                  them.
 
              
 
              2.  The party against whom preclusion is sought had a
 
                  significantly heavier burden of persuasion with
 
                  respect to the issue in the initial action than in
 
                  the subsequent action.
 
         
 
              Heidemann v. Sweitzer, 375 N.W.2d 665 (Iowa 1985).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Also, two independent agencies should be free separately to 
 
         adjudicate similar claims arising from the same facts when they 
 
         have specialized expertise in adjudicating a particular issue 
 
         within their jurisdiction.  Matter of Kjos, 346 N.W.2d 25 (Iowa 
 
         1984).
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 6
 
         
 
         
 
              In the case sub judice, it would appear that defendants have 
 
         shown the four prerequisites with reference to the prior decision 
 
         on claimant's unemployment compensation benefits.  However, there 
 
         is a considerable difference in the extensiveness of the 
 
         procedures between job service unemployment claims and this 
 
         agency's workers' compensation claims.  Claimant was not 
 
         represented by counsel in the prior proceeding and only a 
 
         telephone hearing was conducted.  There is little or no discovery 
 
         in unemployment compensation hearings in job service.  The job 
 
         service administrative law judge stated that there was no medical 
 
         evidence admitted to support a finding that the injury was work 
 
         related.  On the other hand, there was extensive medical evidence 
 
         submitted in this case.
 
         
 
              The undersigned has, on one occasion, applied the doctrine 
 
         of issue preclusion in a case in which there was a prior adverse 
 
         decision in an unemployment compensation case.  See Belz v. Royal 
 
         Machine & Foundry, Ltd., Arbitration Decision No. 776813, filed 
 
         November 27, 1985 (final agency decision).  However, in that 
 
         case, the issue was credibility and whether or not claimant's 
 
         specific injury occurred at work or at home the evening before.  
 
         It was held in that case that this agency had no particular 
 
         specialized expertise in resolving issues of credibility or the 
 
         particular factual issue involved in that case.  However, in the 
 
         case at bar, the existence of a cumulative trauma involving 
 
         overuse syndrome is within the particular specialized expertise 
 
         of this agency and such a determination demands a full airing of 
 
         all medical views.  Such determination should remain with this 
 
         agency in adjudicating workers' compensation claims.  Therefore, 
 
         defendants have failed to demonstrate that the issue of the work 
 
         relatedness of claimant's shoulder difficulties has been 
 
         precluded by a prior decision of another agency.
 
         
 
              II.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury. The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979) ; Crowe v. DeSoto Consol. Sch. Dist. , 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, the opinions of Dr. Morgan as the 
 
         primary treating physician must be given the greater weight due 
 
         to her more extensive clinical involvement in
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 7
 
         
 
         
 
         claimant's case and her specialized expertise in the diagnosed 
 
         condition. According to Dr. Morgan, claimant's condition is work 
 
         related and permanent.
 
         
 
              With reference to the injury date, nothing in particular 
 
         happened on June 9, 1987, other than that was the time when 
 
         claimant first.sought treatment from Dr. Catalona.  The more 
 
         appropriate work injury date is November 22, 1987, the last day 
 
         worked by claimant as it was at this time that claimant was 
 
         compelled by her pain to leave her employment upon the advice of 
 
         her physician.  Claimant did not return to work after that time.  
 
         The undersigned is free to choose a different injury date than a 
 
         date plead in the pleadings when we are dealing with cumulative 
 
         trauma cases so long as timeliness and rate are not at issue.  In 
 
         this case, the timeliness would not be at issue with a November 
 
         22, 1987 injury date and the parties stipulated to a rate 
 
         regardless of the date of injury.  Therefore, it will be found 
 
         that claimant suffered cumulative bilateral shoulder injury on 
 
         November 22, 1987.
 
         
 
              III.  The claimant has the burden of proving by a 
 
         pre-ponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co., 288 N.W.2d 181 (Iowa 1980).  The question of causal 
 
         connection is essentially within the domain of expert medical 
 
         opinion.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 
 
         N.W.2d 167 (1960).  The opinion of experts need not be couched in 
 
         definite, positive or unequivocal language and the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 8
 
         
 
         
 
         v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911,915 
 
         (1966).  Such evidence does not, however, compel an award as a 
 
         matter of law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 
 
         536 (Iowa 1974).  To establish compensability, the injury need 
 
         only be a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.  In the 
 
         case of a preexisting  condition, an employee is not entitled to 
 
         recover for the results of a preexisting injury or disease but 
 
         can recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In the case at bar, the evidence established that claimant 
 
         suffered a 10 percent permanent partial impairment to the body as 
 
         a whole.  Admittedly, Dr. Morgan stated that there was no 
 
         scientific basis for such a rating.  However, such a statement 
 
         was made only because there was no rating guide available to help 
 
         her in arriving at her rating.  In the absence of any other 
 
         rating, Dr. Morgan's estimation appears to be the best evidence 
 
         of claimant's permanent partial impairment.  Secondly, the views 
 
         of Dr. Morgan show the requisite causal connection between the 
 
         work injury and the 10 percent permanent partial impairment.
 
         
 
              IV. Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34 (2) (u)  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment of restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical  condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 9
 
         
 
         
 
         by a job transfer for reasons related to the injury is also 
 
         relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
         (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no functional impairments or ascertainable 
 
         disabilities before working at Louis Rich.  She was fully able to 
 
         perform all physical tasks involving manual labor, repetitive 
 
         lifting, and repetitive use of her arms and hands.  As a result 
 
         of her work at Louis Rich, claimant's treating physician, Dr. 
 
         Morgan, has given claimant a significant permanent partial 
 
         impairment rating to the body as a whole.  Also, more importantly 
 
         from an industrial disability standpoint, Dr. Morgan has 
 
         restricted claimant's work activities to work which does not 
 
         involve lifting over 10 pounds or repetitive use of her arms and 
 
         shoulders.  These restrictions prevent claimant from returning to 
 
         the work she was performing at the time of the injury.  Such 
 
         manual labor work is the type of work for which she is best 
 
         suited given her lack of formal education and past work 
 
         experience.
 
         
 
              Claimant remains unemployed at the present time and has 
 
         attempted a return to work at Louis Rich.  Louis Rich disputes 
 
         this but claimant was credible on this issue and the fact that 
 
         she is receiving unemployment compensation benefits is evidence 
 
         that she did in fact return to Louis Rich after the work injury 
 
         and was denied suitable work.  Claimant has apparently made no 
 
         effort to look for work at any other place of employment.  
 
         However, her decision to await such an employment search until 
 
         completion of her retraining efforts is a reasonable approach and 
 
         she will not be penalized in this decision for failure to show 
 
         extensive job search.  Also, the undersigned is not to predict 
 
         the success of any retraining program or any employment search 
 
         after such a retraining program.  Steward v. Crouse Cartage 
 
         Co., Appeal Decision file February 20, 1987.  This agency is 
 
         available upon proper application in the future to review such 
 
         matters when more facts become available as to the success of 
 
         claimant's retraining.
 
         
 
              Claimant is relatively young and has her GED.  According to 
 
         state vocational rehabilitation counselors she appears to be on a 
 
         suitable path for vocational rehabilitation provided the training 
 
         is completed.  She appears to be motivated.  Claimant has not 
 
         plead or argued for application of the odd-lot doctrine in this 
 
         proceeding.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that  claimant has suffered a 50 percent loss in 
 
         her earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 250 weeks 
 
         permanent partial disability benefits under Iowa
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 10
 
         
 
         
 
         Code section 85.34(2) (u) which is 50 percent of 500 weeks, the 
 
         maximum allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until she returns to work; until she is medically capable of 
 
         returning to substantially similar work to the work she was 
 
         performing at the time of the injury; or, until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.
 
         
 
              After months of attempted treatment in the form of 
 
         medication, physical therapy and restricted work activity, Dr. 
 
         Morgan finally opined on January 4, 1988, that claimant's 
 
         condition was permanent.  This appears to be the most appropriate 
 
         time when claimant's physician no longer anticipated improvement 
 
         from treatment.  Claimant will be awarded healing period benefits 
 
         from November 22, 1987 through January 4, 1988.
 
         
 
              V.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses.  
 
         Otherwise, claimant is entitled only to an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988). Defendants stipulated as to 
 
         the causal connection between the alleged condition and the 
 
         medical bills submitted in the prehearing report.  Due to the 
 
         finding of a causal connection of the condition to claimant's 
 
         work, the finding of causal connection of the medical bills is 
 
         automatic and their payment by defendants will be ordered.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
         
 
              2. On November 22, 1987, claimant suffered an injury both 
 
         the left and right shoulders, which arose out of and in the 
 
         course of her employment with Louis Rich.  This injury was 
 
         finally diagnosed as fibromyalgia, an overuse syndrome, which 
 
         occurred as a result of claimant's repetitive work at Louis Rich 
 
         between February and November 1987.  On November 22, 1987, 
 
         claimant was compelled by her symptoms to permanently leave the 
 
         employment of Louis Rich.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3. The work injury of November 22, 1987, was a cause of a 
 
         period of total disability from work beginning on November 22, 
 
         1987 and ending on January 4, 1988, at which
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 11
 
         
 
         
 
         time claimant reached maximum healing.  During this time, 
 
         claimant received extensive treatment of the work injury 
 
         consisting of limitations on activity, medications for pain and 
 
         inflammation, home exercise and supervised physical therapy.
 
         
 
              4. The work injury of November 22, 1987, is a cause of a 10 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions on claimant's  physical activity 
 
         consisting of no lifting over 10 pounds and no repetitive 
 
         movement of the arms and shoulders.  Claimant had no 
 
         ascertainable functional impairment prior to the work injury.
 
         
 
              5. The work injury of November 22, 1987, and the resulting 
 
         permanent partial impairment is a cause of a 50 percent loss of 
 
         earning capacity.  Claimant is 31 years of age.  Claimant is a 
 
         high school dropout but has subsequently earned her GED.  
 
         Claimant has no ascertainable loss of earning capacity prior to 
 
         the work injury.  Claimant's physician imposed work activity 
 
         restrictions prevent her from returning to the job she was 
 
         performing at the time of the injury.  Claimant is also unable to 
 
         return to manual labor jobs she has held in the past.  Claimant's 
 
         employment in manual labor occupations requiring repetitive use 
 
         of her shoulders and arms is the type of occupations for which 
 
         she is best suited given a lack of formal education and work 
 
         experience.  Despite good motivation and efforts to return to 
 
         gainful employment, claimant has been unable to do so since 
 
         leaving her employment at Louis Rich and she has subsequently 
 
         suffered a severe loss of actual earnings.  According to 
 
         vocational counselors, successful rehabilitation depends upon 
 
         completion of retraining courses.  Claimant is currently 
 
         attending training courses to qualify her for clerical work but 
 
         the success of this effort is unknown at this time.
 
         
 
              6. The medical expenses listed in the prehearing report are 
 
         reasonable and necessary treatment of the work injury of November 
 
         22, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to six and 
 
         two-sevenths weeks of healing period benefits; 250 weeks of 
 
         permanent partial disability benefits; and to $662.49 in medical 
 
         benefits.
 
         
 
                                      ORDER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1. Defendants shall pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred eighty-one and 78/100 dollars ($181.78) per week from 
 
         January 5, 1988.
 
         
 
         
 
         
 
         NATERA V. LOUIS RICH COMPANY
 
         Page 12
 
         
 
         
 
              2. Defendants shall pay to claimant healing period benefits 
 
         from November 22, 1987 through January 4, 1988 at the rate of one 
 
         hundred eighty-one and 78/100 dollars ($181.78) per week.
 
         
 
              3. Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of those 
 
         expenses paid by her.  Otherwise, defendants shall pay the 
 
         provider directly along with any lawful late payment penalties 
 
         imposed upon the account by the provider.
 
         
 
              4. Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              5. Defendants shall receive credit for previous payment of 
 
         benefits under a non-occupational group insurance plan pursuant 
 
         to Iowa Code section 85.38(2) as stipulated by the parties in the 
 
         prehearing report.
 
         
 
              6. Defendants shall pay interest on weekly, benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              7. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
               8. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. John H. Westensee
 
         Attorney at Law
 
         1703 Second Ave
 
         Rock Island IL 61201
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 East Third St
 
         Davenport IA  52801-1596
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803; 1600
 
                                         Filed January 30, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARIA M. NATERA,
 
         
 
              Claimant,
 
         
 
                                                  File No. 872768
 
         VS.
 
         
 
                                             A R B I T R A T I 0 N
 
         LOUIS RICH COMPANY,
 
         
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Causal connection and extent of permanent partial disability 
 
         benefits.
 
         
 
         
 
         1600 - Issue Preclusion Defense
 
         
 
              Employer raised doctrine of issue preclusion due to a prior 
 
         adverse decision of a Job Service Administrative Law Judge which 
 
         found that the injury was not work related.  Held that such a 
 
         defense is applicable to administrative proceedings but it is an 
 
         affirmative defense where the burden of proof is placed upon the 
 
         defendant.  Although all four prerequisites to apply the doctrine 
 
         established by the Iowa Supreme Court were met in this case, 
 
         there is an exception to application of the doctrine when an 
 
         issue involves a matter within the specialized expertise of an 
 
         administrative agency.  In such cases, each agency is free to 
 
         independently resolve the issue.  Therefore, it was held that 
 
         because this case involved an alleged cumulative trauma work 
 
         injury, such an issue is within the specialized knowledge and 
 
         expertise of this agency and should be resolved by this agency 
 
         independent of Job Service.  The application of the doctrine by 
 
         the undersigned in a prior final agency decision involving a Job 
 
         Service decision was distinguished in that the prior
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         case involved an issue of credibility and a precise factual issue 
 
         of when and where the injury occurred.  It was held in the prior 
 
         case that such matters are not within the specialized expertise 
 
         of this agency and the prior decision of the administrative law 
 
         judge precluded relitigation of the same issue by this agency.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51401; 51402.40; 51402.60
 
                                          51801; 51803
 
                                          Filed August 22, 1990
 
                                          Walter R. McManus, Jr.
 
 
 
                                     BEFORE 
 
                         THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HOPE LEANN CARDER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  872774
 
            PIONEER HI BRED INTERNATIONAL,:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51401; 51402.40; 51402.60; 51801; 51803
 
            Claimant proved only entitlement to temporary disability 
 
            benefits during her period of hospitalization immediately 
 
            following the injury.  No doctor took her off work after 
 
            that.  Even though she did not work for about three months 
 
            this was her own choice and the choice of her father.  
 
            Defendants had already paid temporary total disability for 
 
            the period of hospitalization and received a credit for it.
 
            Claimant did not prove the injury caused any permanent 
 
            disability and was not entitled to any disability benefits.  
 
            The testimony of Marc E. Hines, M.D., a neurologist from 
 
            Ottumwa, was rejected and the testimony of David J. Boarini, 
 
            M.D., a neurosurgeon from Des Moines, was accepted as the 
 
            better testimony.
 
            Claimant was awarded medical expenses that defendants had 
 
            refused to pay for Dr. Hines.  The decision accepts his 
 
            testimony that the injury caused the medical treatment but 
 
            rejects Dr. Hines' opinion that the injury was the cause of 
 
            permanent disability.