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                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CHARLOTTE NEAL,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 875984
 
         IOWA METHODIST MEDICAL CENTER,:
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Charlotte Neal, against her employer, Iowa Methodist 
 
         Medical Center, and its insurance carrier, Aetna Casualty & 
 
         Surety Company, defendants.  The case was heard on April 15, 
 
         1991, in Des Moines, Iowa.  The record consists of the testimony 
 
         of claimant, the testimony of Leona E. Martin of Diversified 
 
         Rehabilitation Services, and the testimony of Leanna Sue Taylor, 
 
         daughter of claimant.  Additionally, the following witnesses tes
 
         tified for defendants:  Barbara Chaldy and Mary Kay Hoogerwerf.  
 
         The record also consists of joint exhibits 1-7, claimant's 
 
         exhibits 1-7 (except exhibits 1, subsection 2) and defendants' 
 
         exhibits A and B.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) Whether claimant 
 
         received an injury which arose out of and in the course of 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; and,  3) whether claimant is 
 
         entitled to temporary disability/healing period benefits or per
 
         manent disability benefits.
 
         
 
                        
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is a 52 year old divorced woman.  She has a high 
 
         school diploma.  She commenced her employment with 
 
         defendant-employer in March of 1970.  Claimant was hired as a 
 
         full time nursing assistant in surgery.  She held that position 
 
         for eight years before she was promoted to supply technician.  As 
 
         a supply technician, claimant was required to obtain supplies 
 
         from the basement and to stock them in surgery.  Claimant 
 
         voluntarily terminated this position in order to move to Oregon.  
 
         After a two week absence, claimant returned to Iowa Methodist 
 
         Medical Center as an instrument technician.  Her duties included 
 
         assembling packs of instruments, placing them in an autoclave, 
 
         sterilizing instruments, removing instruments from the autoclave 
 
         and removing instrument racks from the autoclave.
 
         
 
              Claimant testified the racks weighed between 16 to 20 pounds 
 
         and she was required to repetitively lift them.  Claimant also 
 
         testified that her job involved repetitive bending and stooping 
 
         and that 90 percent of her job involved standing.
 
         
 
              Claimant reported she had no back problems until February of 
 
         1983, when she hurt her lower back while lifting the autoclave.  
 
         Claimant was off work from January 1984 until August 1984 because 
 
         she had two lumbar laminectomies at the fifth lumbar interspace.  
 
         When she returned to work, she was restricted to lifting 40 
 
         pounds and from engaging in activities she could physically 
 
         handle.  Claimant testified she worked regularly between August 
 
         1984 and July 1, 1987.
 
         
 
              Claimant entered into a compromise special case settlement 
 
         around January of 1985, whereby claimant received a lump sum set
 
         tlement of $29,000 with her future medical benefits left open.  
 
         This was the result of the alleged work injury in February of 
 
         1983.
 
         
 
              Claimant testified that on June 26, 1987, she was working 
 
         from 12:30 to 9:00 as an instrument technician.  She stated she 
 
         was hurting twice as much as she had normally hurt because she 
 
         was engaging in extra repetitive bending and lifting.  She felt 
 
         she had reinjured herself on that date.  Several days later, 
 
         claimant reported the incident to her supervisor, Deb Mayer.
 
         
 
              On July 1, 1987, claimant returned to Robert A. Hayne, M.D., 
 
         her treating physician for the prior back surgeries.  Claimant 
 
         described her condition as, "the same symptoms, but twice as 
 
         bad."
 
         
 
              Dr. Hayne administered an epidural steroid injection.  In 
 
         February of 1988, Dr. Hayne issued a report whereby he opined:
 
         
 
              [I]t is my feeling that the work that Charlotte Neal 
 
              performed the latter part of June and the first part of 
 
              July of 1987 was instrumental in aggravating a 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              pre-existent back condition....
 
         
 
              Dr. Hayne scheduled a third back surgery for February 2, 
 
         1988.  Claimant received temporary total disability/healing 
 
         period benefits or temporary permanent disability benefits as 
 
         follows:
 
         
 
              TYPE OF PAYMENT               DATES
 
         
 
              6 weeks 6 days TTD            2/2/88 - 3/20/88
 
              2 weeks TPD                   3/21/88 - 4/3/88
 
              1 week 5 days TTD             5/19/88 - 5/30/88
 
              2 weeks 2 days TPD            5-31/88 - 6/23/88
 
              1 week 6 days TTD             6/24/88 - 7/6/88
 
              3 weeks TTD                   9/26/88 - 10/16/88
 
              1 week TPD                    12/4/88 - 12/10/88
 
              1 week TPD                    12/11/88 - 12/17/88
 
              1 week TPD                    12/18/88 - 12/24/88
 
              1 week TPD                    12/25/88 - 12/31/88
 
         
 
              2 weeks TTD                   1/1/89 - 1/14/89
 
              1 week TPD                    1/15/89 - 1/21/89
 
              1 week TTD                    1/22/89 - 1/28/89
 
              1 week TPD                    1/29/89 - 2/4/89
 
              1 week TPD                    2/5/89 - 2/11/89
 
              1 week TPD                    2/12/89 - 2/18/89
 
              2 days TPD                    2/20/89 - 2/21/89
 
         
 
              5 weeks 5 days TTD            12/23/89 - 1/31/90
 
         
 
              The parties have stipulated that the above accurately 
 
         reflects the temporary benefits paid to claimant.
 
         
 
              Dr. Hayne rated claimant as having a 28 percent functional 
 
         impairment with 17-18 percent attributable to the 1983 injury and 
 
         10 to 11 percent attributable to the 1987 incident.
 
         
 
              After her third surgery, claimant returned to work as a case 
 
         cart worker.  She held this position until December 23, 1989, 
 
         when claimant left work because of extreme pain.
 
         
 
              Dr. Hayne would not release claimant to return to her former 
 
         positions as an instrument technician or case cart worker.  Dr. 
 
         Hayne restricted claimant from engaging in work which would place 
 
         unusual strain on her back or from lifting more than 30 pounds.
 
         
 
              Over the course of seven years, Dr. Hayne restricted 
 
         claimant as follows:
 
         
 
                                 1984          1986          1991
 
                            ___________________________________________
 
                                                      *                
 
              Occasional        40 lb.       30 lb.    11 to 20 lbs.   
 
              Lifting                                                  
 
                            ___________________________________________
 
                                                                       
 
              Repetitive        20 lb.       20 lb.         20 lb.     
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Lifting                                                  
 
                            ___________________________________________
 
                                                                       
 
              Standing/       45-60 min.     30 min.       30 min.     
 
              Sitting                                                  
 
                            ___________________________________________
 
              
 
                                         * (Exhibit A with modification)
 
         
 
              Reaching overhead, use of hands and feet, bending, squat-      
 
         ting, crawling, climbing and kneeling unchanged 1984-1991.
 
         
 
              Eventually Dr. Hayne opined that claimant could work as a 
 
         ward clerk, a position which required no lifting and intermittent 
 
         sitting, standing and walking.  The skills involved were basi
 
         cally clerical in nature.
 
         
 
              Claimant was informed that she would have to complete train
 
         ing through Des Moines Area Community College.  Claimant satis
 
         factorily completed the course work.  As of the date of the hear
 
         ing, defendant-employer had not rehired claimant.  Neither had 
 
         claimant found other employment.
 
         
 
                                conclusions of law
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and circum
 
         stances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 
 
         (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 
 
         287 (Iowa 1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 
         (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         rule" applies.  For time limitation 
 
         purposes, the compensable injury is held to occur when because of 
 
         pain or physical disability, the claimant can no longer work.  
 
         McKeever, 379 N.W.2d 368 (Iowa 1985).
 
 
 
              Total disability does not mean a state of absolute helpless
 
         ness.  Permanent total disability occurs where the injury wholly 
 
         disables the employee from performing work that the employee's 
 
         experience, training, education, intelligence and physical capac
 
         ities would otherwise permit the employee to perform.  See 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); 
 
         Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935).
 
         
 
              A finding that claimant could perform some work despite 
 
         claimant's physical and educational limitations does not fore
 
         close a finding of permanent total disability, however.  See 
 
         Eastman v. Westway Trading Corp., II Iowa Industrial 
 
         Commissioner Reports 134 (Appeal Decision 1982); Chamberlin v. 
 
         Ralston Purina, Appeal Decision October 29, 1987.
 
         
 
              In the case at hand, claimant has established by a prepon
 
         derance of the evidence that she has sustained a work related 
 
         injury which was cumulative in nature.  Claimant did engage in 
 
         repetitive activities which materially aggravated her preexisting 
 
         back condition.  Dr. Hayne causally connected claimant's condi
 
         tion to the repetitive activities in which claimant performed 
 
         while working (Exhibit 4, pages 18-19, line 5).  Under McKeever, 
 
         this is a compensable injury.
 
         
 
              The next issue to address is the nature and extent of 
 
         claimant's injury of June 26, 1987 and whether claimant's dis
 
         ability should be apportioned between a prior injury on February 
 
         18, 1983, where she was rated as having a 17-18 percent physical 
 
         impairment and the present work injury.  
 
         
 
              In Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 
 
         1990), the Iowa Supreme Court determined that claimant sustained 
 
         a work related injury on or about May 9, 1983 and that the May 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         injury aggravated claimant's preexisting shoulder condition.  The 
 
         Court held that it was impossible to discern whether the present 
 
         disability was attributable to the preexisting condition.  How
 
         ever, the Court held that the industrial commissioner should have 
 
         established the extent of the body as a whole industrial disabil
 
         ity.  No apportionment was warranted.
 
         
 
              Claimant entered into a compromise special case settlement 
 
         for her alleged 1983 work injury.  She received $29,000 as set
 
         tlement.  Claimant returned to her former position for the same 
 
         rate of pay.  Subsequent to the settlement, claimant received 
 
         regular raises and eventually she was compensated at a rate 
 
         greater than she had earned in 1983.  Prior to the 1987 work 
 
         injury, claimant suffered little, if any, loss of earning capac
 
         ity.  She retained her position with defendant-employer.  She 
 
         maintained full time employment.  Claimant's work performance was 
 
         more than satisfactory.  Her annual evaluations exceeded stan
 
         dards set for her.  She was able to complete the assigned duties 
 
         within the time specified.  Her attitude was excellent.  Claimant 
 
         worked regularly between August, 1984 and June 26, 1987.  She was 
 
         quite capable of earning a moderate income as evidenced by 
 
         exhibit 2.  There was no evidence to establish she was industri
 
         ally disabled by the alleged injury of 1983.
 
         
 
              After the 1987 injury, claimant had her third lumbar 
 
         laminectomy.  Originally, claimant returned to the same position 
 
         with defendant-employer.  Eventually, claimant transferred to the 
 
         position of case cart technician.  This was a lighter duty posi
 
         tion.  Claimant did not have to lift as much weight as she was 
 
         required to lift in her former position.  She was placed under 
 
         various lifting restrictions by Dr. Hayne.  She was to avoid 
 
         repetitive bending, squatting and standing.  Claimant continued 
 
         to work as a case cart technician until the fall of 1989.  Then 
 
         she resorted to a lighter duty position whereby she was required 
 
         to stand and fold linens.  Claimant testified she worked despite 
 
         severe pain.  The pain became so severe defendant-employer's doc
 
         tors referred her to the pain clinic on site.
 
         
 
              Claimant, on the urging of her employer, successfully par
 
         ticipated and completed a pain management program.  Later, 
 
         claimant experienced pain.  The treating physician, William C. 
 
         Koenig, Jr., M.D., temporarily restricted claimant from working 
 
         as of January 10, 1990.  She was released to return to work in 
 
         February of 1990 to a ward clerk position.  Claimant was not able 
 
         to return to any of her former positions.  Defendant-employer had 
 
         filled all of the previously held positions with other individu
 
         als.  Defendant-employer had no work available for claimant.  She 
 
         was told to keep contacting the personnel office for future job 
 
         leads.  Claimant made numerous telephone calls to the personnel 
 
         department.  She was highly motivated to return to work with her 
 
         long time employer.  No position was offered to claimant.  
 
         Claimant cooperated with several vocational rehabilitation spe
 
         cialists.  They were unable to locate a position for claimant 
 
         either with defendant-employer or with another employer.
 
         
 
              Retraining was provided to claimant so she could become a 
 
         ward clerk.  Claimant successfully completed the program at Des 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Moines Area Community College.  Several ward clerk positions 
 
         opened at defendant-employer's hospital.  Claimant applied for 
 
         the positions.  Nevertheless, she was not hired by 
 
         defendant-employer.
 
         
 
              After reviewing all of the evidence, it is the determination 
 
         of the undersigned that claimant is permanently and totally dis
 
         abled under Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 
 
         899, 902 (1935).  In Diederich, at 593, the Iowa Supreme Court 
 
         defined industrial disability.  The Court stated:  "It is there
 
         fore plain that the legislature intended the term `disability' to 
 
         mean `industrial disability' or loss of earning capacity and not 
 
         a mere `functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The Court in Diederich went on to address the meaning of 
 
         permanent total disability.  The Court indicated:
 
         
 
              What is "permanent total disability"?  Does this clause 
 
              refer to "functional disability" or to "industrial 
 
              disability"?
 
         
 
              For clearness we shall use the term "industrial dis
 
              ability" as referring to disability from carrying on a 
 
              gainful occupation--inability to earn wages.  By 
 
              "functional disability" we shall refer to the disabil
 
              ity to perform one or more of the physical movements 
 
              which a normal human being can perform.
 
         
 
                 ....
 
         
 
              It is obvious that "disability" here used cannot refer 
 
              to mere "functional disability",...
 
         
 
              It is...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 terms of percentages of the total 
 
              physical and mental ability of a normal man.
 
         
 
                 ....
 
         
 
              [T]he Compensation law was passed for the purpose of 
 
              compensating the working man when injured.  The loss 
 
              which this claimant suffered due to the injury which he 
 
              received while in the employ of the company is the 
 
              inability to carry on the work he was doing prior to 
 
              the time of the injury, or any work which he could per
 
              form.  This man at fifty-nine years of age, after 
 
              thirty years as a street car motorman, with little edu
 
              cation, cannot find or hold a position that would not 
 
              require some, manual labor, and, of course, due to the 
 
              condition of his back, he cannot perform such work.  To 
 
              say that he might become a stenographer or a lawyer or 
 
              a clerk or a bookkeeper is to suppose the impossible, 
 
              for a fifty-nine-year old man, with no education, is 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              not capable of securing or filling any such position.  
 
              His disability may be only a twenty-five or thirty per 
 
              cent [sic] disability compared with the one hundred per 
 
              cent [sic] perfect man, but, from the standpoint of his 
 
              ability to go back to work to earn a living for himself 
 
              and his family, his disability is a total disability, 
 
              for he is not able to again operate the street car and 
 
              perform the work which the company demanded of him 
 
              prior to the time of the accident.
 
         
 
              Claimant has definitely had a total loss of earning capac
 
         ity.  Even defendant-employer refuses to hire claimant despite 
 
         the financial incentive to do so and despite the recommendations 
 
         of defendants' two rehabilitation consultants.  Claimant's age is 
 
         working against her.  It is inconceivable that another employer 
 
         would jump at the chance to hire claimant when defendant-employer 
 
         refuses to rehire a dedicated and motivated person like claimant 
 
         who has devoted many years of loyal service to her employer.
 
         
 
              Therefore, it is the determination of the undersigned that 
 
         as of the date stipulated to by the parties, February 1, 1990, 
 
         claimant was permanently and totally disabled.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant weekly benefits for the 
 
         duration of claimant's period of permanent total disability with 
 
         said benefits commencing on February 1, 1990 and running continu
 
         ously at the rate of one hundred ninety-three and 71/l00 dollars 
 
         ($193.71) per week.
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended.
 
         
 
              Costs are taxed to defendant pursuant to rule 343 IAC 4.33, 
 
         including but not limited to:
 
          
 
              deposition charges            $278.90
 
              deposition charges              37.60
 
              Dr. Hayne's witness fee          150.00
 
                               Total         466.50
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Larry C. Krpan
 
         Attorney at Law
 
         3100 Ingersoll Ave
 
         Des Moines  IA  50312
 
         
 
         Ms. Lorraine J. May
 
         Mr. Timothy C. Hogan
 
         Attorneys at Law
 
         4th Floor Equitable Bldg
 
         Des Moines  IA  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1804; 1400
 
                           Filed September 30, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLOTTE NEAL,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 875984
 
            IOWA METHODIST MEDICAL CENTER,:
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1804; 1400
 
            It was held that claimant was permanently and totally 
 
            disabled.  Claimant sustained an injury to her low back on 
 
            June 26, 1987.  In 1983, claimant alleged a prior work 
 
            injury.  For the prior injury, she was rated as having a 
 
            17-18 percent physical impairment.
 
            
 
                 Claimant entered into a compromise special case 
 
            settlement for her alleged 1983 work injury.  She received 
 
            $29,000 as settlement.  Claimant returned to her former 
 
            position for the same rate of pay.  Subsequent to the 
 
            settlement, claimant received regular raises and eventually 
 
            she was compensated at a rate greater than she had earned in 
 
            1983.  Prior to the 1987 work injury, claimant suffered 
 
            little, if any, loss of earning capacity.  She retained her 
 
            position with defendant-employer.  She maintained full time 
 
            employment.  Claimant's work performance was more than 
 
            satisfactory.  Her annual evaluations exceeded standards set 
 
            for her.  She was able to complete the assigned duties 
 
            within the time specified.  Her attitude was excellent.  
 
            Claimant worked regularly between August, 1984 and June 26, 
 
            1987.  She was quite capable of earning a moderate income as 
 
            evidenced by exhibit 2.  There was no evidence to establish 
 
            she was industrially disabled by the alleged injury of 1983.
 
            
 
                 After the 1987 injury, claimant had her third lumbar 
 
            laminectomy.  Originally, claimant returned to the same 
 
            position with defendant-employer.  Eventually, claimant 
 
            transferred to the position of case cart technician.  This 
 
            was a lighter duty position.  Claimant did not have to lift 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            as much weight as she was required to lift in her former 
 
            position.  She was placed under various lifting restrictions 
 
            by Dr. Hayne.  She was to avoid repetitive bending, 
 
            squatting and standing.  Claimant continued to work as a 
 
            case cart technician until the fall of 1989.  Then she 
 
            resorted to a lighter duty position whereby she was required 
 
            to stand and fold linens.  Claimant testified she worked 
 
            despite severe pain.  The pain became so severe 
 
            defendant-employer's doctors referred her to the pain clinic 
 
            on site.
 
            
 
                 Claimant, on the urging of her employer, successfully 
 
            participated and completed a pain management program.  
 
            Later, claimant experienced pain.  The treating physician, 
 
            William C. Koenig, Jr., M.D., temporarily restricted 
 
            claimant from working as of January 10, 1990.  She was 
 
            released to return to work in February of 1990 to a ward 
 
            clerk position.  Claimant was not able to return to any of 
 
            her former positions.  Defendant-employer had filled all of 
 
            the previously held positions with other individuals.  
 
            Defendant-employer had no work available for claimant.  She 
 
            was told to keep contacting the personnel office for future 
 
            job leads.  Claimant made numerous telephone calls to the 
 
            personnel department.  She was highly motivated to return to 
 
            work with her long time employer.  No position was offered 
 
            to claimant.  Claimant cooperated with several vocational 
 
            rehabilitation specialists.  They were unable to locate a 
 
            position for claimant either with defendant-employer or with 
 
            another employer.
 
            
 
                 Retraining was provided to claimant so she could become 
 
            a ward clerk.  Claimant successfully completed the program 
 
            at Des Moines Area Community College.  Several ward clerk 
 
            positions opened at defendant-employer's hospital.  Claimant 
 
            applied for the positions.  Nevertheless, she was not hired 
 
            by defendant-employer.
 
            
 
                 Claimant had a total loss of earning capacity.  Even 
 
            defendant-employer refused to hire claimant despite the 
 
            financial incentive to do so and despite the recommendations 
 
            of defendants' two rehabilitation consultants.  Claimant's 
 
            age was working against her.  It is inconceivable that 
 
            another employer would jump at the chance to hire claimant 
 
            when defendant-employer refused to rehire a dedicated and 
 
            motivated person like claimant who had devoted many years of 
 
            loyal service to her employer.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
          
 
GERARD WARD,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                   File Nos. 876141, 970214
 
JET GAS, INC. and WILLIAM     
 
JOHNSON TRUCK LINE, INC.,     
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL COMPANIES    
 
and HERITAGE INSURANCE   
 
COMPANY,  
 
          
 
     Insurance Carriers, 
 
     Defendants.    
 
_________________________________________________________________
 
                      STATEMENT OF THE CASE
 
 
 
This is a consolidated proceeding in arbitration brought by Gerald 
 
Ward, claimant, against two employers, Jet Gas, Inc., insured by 
 
Employer Mutual Companies, hereinafter referred to as Jet Gas, and 
 
William Johnson Trucking, Inc., insured by Heritage Insurance Company, 
 
hereinafter referred to as Johnson Trucking, defendants, for workers' 
 
compensation benefits as a result of alleged injuries on January 28, 
 
1988 and November 26, 1990. On February 2, 1995, 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 hearing report of contested issues and 
 
stipulations which were approved and accepted as a part of the record 
 
of this case at the time of hearing.  The oral testimony and written 
 
exhibits received during the hearing are set forth in the hearing 
 
transcript.
 
 
 
According to the hearing report, the parties have stipulated to the 
 
following matters:
 
 
 
1.  An employee/employer relationship existed between claimant and both 
 
employers at the time of the alleged injuries.
 
 
 
2.  Claimant received injuries arising out of and in the course of 
 
employment on January 28, 1988 and November 26, 1990 with Jet Gas and 
 
Johnson Trucking, respectively.
 
 
 
3.  Claimant is seeking additional temporary total or healing period 
 
benefits from September 10, 1991 through September 9, 1993 and 
 
defendants agree that he was not working during this period of time.  
 
It was not disputed by Johnson Trucking that claimant was entitled to 
 
temporary total disability benefits from the date of injury until March 
 
18, 1991.
 
 
 
4.  At the time of the injuries claimant had a gross rate of weekly 
 
compensation of $492.00 in 1988 and $441.75 in 1990, was married and 
 
entitled to four exemptions.  Therefore, claimant's weekly rate of 
 
compensation is $312.97 for the 1988 injury and $285.59 for the 1990 
 
injury according to the Industrial Commissioner's published rate 
 
booklet for this injury.
 

 
 
 
 
 
 
 
 
 
5.  It was stipulated that the providers of the requested medical 
 
expenses would testify as to their reasonableness and defendants are 
 
not offering contrary evidence.  It was also stipulated that the 
 
requested expenses are causally connected to the medical conditions 
 
upon which the claims herein are based, but that the issue of their 
 
causal connection to any work injury remains an issue to be decided 
 
herein.
 
 
 
                            ISSUES
 
 
 
The parties submitted the following issues for determination in this 
 
proceeding:
 
 
 
 I.  The extent of claimant's entitlement to disability benefits; and,
 
 
 
II.  The extent of claimant's entitlement to medical benefits.
 
 
 
                      FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the evidence, the 
 
deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is not necessary to this decision as neither 
 
defendant truly challenged claimant's credibility at hearing.
 
 
 
Claimant worked for Jet Gas from April 1985 until he was terminated in 
 
May 1988.  Claimant was an over-the-road trucker for Jet Gas hauling 
 
semi truckloads of diesel fuel, propane gas and, at times, bulk oil or 
 
oil barrels.  According to claimant's testimony, this job was medium to 
 
heavy work as he was required to manhandle heavy hoses in the loading 
 
and unloading of trucks along with barrels of oil.  Claimant's earnings 
 
were based upon a percentage of the gross paid on each load to Jet Gas.
 
 
 
After his termination following the work injury herein, claimant was 
 
unemployed until November 1988 when he began working for Johnson 
 
Trucking as an over-the-road trucker.  This job was lighter duty as no 
 
loading or unloading was required.  However, the job involved more 
 
prolonged driving over greater distances than the work at Jet Gas.  
 
Claimant said that he would work from 70 to 100 hours a week.  Claimant 
 
has not returned to work in any capacity since the injury at Johnson 
 
Trucking and since February 1991, has been drawing Social Security 
 
disability benefits.
 
 
 
The injury in January 1988 at Jet Gas occurred when claimant was hand 
 
loading empty barrels onto his truck.  After lifting one particular 
 
barrel, claimant said that his back "snapped" and that night and the 
 
next morning his pain became more severe and radiated into both of his 
 
legs, but mostly the left.  After reporting the injury to Jet Gas, 
 
claimant left work and was treated by his family physician who then 
 
referred claimant to an orthopedic surgeon, Michael Hendricks, M.D.  
 
 
 
The diagnosis, after testing, was spinal stenosis or narrowing of the 
 
spinal cord canal throughout the lower spine with a herniated disc at 
 
one level.  Claimant received a series of epidural steroid injections 
 
along with anti-inflammatory medication.  In April 1988 claimant was 
 
released to return to work with a restriction against lifting over 10 
 
pounds.  Jet Gas refused to re-employ claimant at that time without a 
 
full release.  Claimant obtained a full release in May 1988, but Jet 
 
Gas still refused to return him to work stating that it did not want an 
 
employee with a back problem.
 
 
 
Claimant had some prior recurring back complaints before January 1988, 
 
but at no time did he ever have radicular symptoms or pain radiating 
 
into the hips or legs until after the Jet Gas incident.  The primary 
 
treating physician, Dr. Hendricks, clearly opines that although the 
 
stenosis was congenital and unrelated to employment, claimant suffered 
 
a herniated disc at the time of the 1988 injury which aggravated the 
 
stenosis making the condition symptomatic.  His opinions were not 
 
controverted in the record.
 
 
 
After beginning with Johnson Trucking, claimant continued treatment of 
 
his back injury with Dr. Hendricks but lost no work as a result of his 
 
continuing pain.  This treatment remained conservative although surgery 
 
was discussed.  Dr. Hendricks was reluctant to proceed with surgery, 
 
assuming that claimant's symptoms would subside with time.  However, 
 
this was not the case.  Claimant states that his condition remained 
 
unchanged between May of 1988 and November 1990.
 
 
 
The injury in November 1990 occurred while claimant was pulling on a 
 
hitch pin in the process of unhooking his trailer from his truck 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
tractor.  Again, claimant felt low back and leg pain, but this time the 
 
pain was more on the right than the left.  Claimant left work and 
 
returned to Dr. Hendricks who again continued his conservative care 
 
until February 1991.  At that time he referred claimant for evaluation 
 
to the Spine Diagnostic and Treatment Center at the University of Iowa 
 
Hospitals and Clinics.  After evaluation, a professor of orthopedics 
 
from this facility, J. N. Weinstein, D.O., performed a decompression 
 
surgery on claimant's spine on September 9, 1991.  Although this 
 
surgery was not in the same area as the herniated disc diagnosed by Dr. 
 
Hendricks, Dr. Weinstein opined in a report asking for the cause of the 
 
condition requiring his treatment that claimant's problems began in 
 
1988 with the injury at Jet Gas and that the 1990 injury aggravated the 
 
1988 injury.  The doctor also opined that claimant would reach maximum 
 
healing two years after the surgery.
 
 
 
All physicians in this case opine that claimant suffers from 
 
significant permanent impairment.  Although only one physician actually 
 
imposed a specific permanent work restriction against lifting over 20 
 
pounds, Dr. Hendricks clearly stated in the record that claimant's 
 
surgery precludes future activity involving heavy labor.  Claimant 
 
verifies that he can no longer return to heavy labor work.  He states 
 
that he cannot lift much or sit or stand for prolonged periods of time 
 
without pain.  He complains of increasing loss of strength in his legs. 
 
 
 
This brings us to the fighting issue in this case, and that is, what 
 
role the two injuries played in precipitating the resulting impairment 
 
and disability.  Three physicians have rendered opinions, Dr. 
 
Hendricks, Dr. Weinstein and a one-time evaluator in March 1991, John 
 
Kock, M.D.  Although there was a bit of waffling by Dr. Kock, all 
 
physicians appear to say that the primary injury here was in 1988 and 
 
the 1990 injury was only a temporary aggravation of the condition 
 
brought on by the original 1988 injury.  In his deposition, Dr. 
 
Hendricks states that the 1990 injury was an anticipated result of the 
 
1988 injury.  Dr. Weinstein again refers to the 1990 injury as only an 
 
aggravation.  Dr. Kock stated in his last opinion that the impairment 
 
he found antedated the 1990 injury.  Therefore, based primarily upon 
 
these medical opinions, it is found that claimant only temporarily 
 
aggravated his back condition in 1990, and after his initial healing 
 
period ended in March 1991, he returned to the same condition as before 
 
the injury.  Consequently, it is found that only the 1988 injury at Jet 
 
Gas was a cause of permanent partial impairment to the body as a whole 
 
and claimant's current inability to perform heavy lifting or prolonged 
 
standing or sitting.
 
 
 
Claimant's medical condition before the work injury was certainly not 
 
excellent, but he had no functional impairments or ascertainable 
 
disabilities.  Claimant was able to perform physical tasks involving 
 
heavy lifting and prolonged standing and sitting.
 
 
 
Claimant is 58 years of age and near the age of retirement. His loss of 
 
earning capacity would not be as great as for a younger man with the 
 
same disability.  However, his age also reduces his potential for 
 
vocational rehabilitation.  No specific evidence was offered as to the 
 
extent of claimant's loss of job market opportunities or his aptitude 
 
for retraining.  Claimant is a high school graduate.
 
 
 
Claimant's work history involves farm work, both as an employee and 
 
owner/operator for 14 years.  Most of his past employment has required 
 
heavy manual labor, the type of work he can no longer perform but is 
 
best suited for, given his work history and education.  However, he has 
 
at least one year of experience in a light duty production foreman job. 
 
 
 
 Also, his only objection to continued driving work is the sitting and 
 
standing.  Consequently, claimant has not shown that he is incapable of 
 
light work, allowing a change of positions.  No physician in this 
 
record has opined that claimant is incapable of any work.  Although 
 
claimant remains unemployed, he has not shown any attempt at returning 
 
to work.  Jet Gas' refusal to re-hire claimant greatly aggravated the 
 
disability herein.
 
 
 
It should be noted that claimant stated at hearing that due to a vision 
 
problem in one of his eyes he may have been driving illegally for Jet 
 

 
 
 
 
 
 
 
 
 
Gas and Johnson Trucking.  Claimant's possible illegal driving status 
 
was not considered in arriving at this disability decision.  Claimant 
 
obviously had qualified for and received a commercial drivers license 
 
at all times material herein. There was nothing offered to show that he 
 
obtained this license by fraud or mistake.  The fact remains that, but 
 
for his back injuries, he probably would still be driving today.
 
 
 
From examination of all of the factors of industrial disability, 
 
claimant failed to show that he is totally disabled; but he remains 
 
very significantly disabled, for which he should be adequately 
 
compensated.  Therefore, it is found that the work injury of January 
 
28, 1988 was the cause of a 60 percent loss of earning capacity.  It is 
 
clear that claimant's first healing period after the 1988 injury ended 
 
upon his release to return to work by Dr. Hendricks on May 8, 1990, at 
 
which time he was fired by Jet Gas.
 
 
 
Finally, it is found that the work injury of January 28, 1988 was a 
 
cause of the condition requiring medical treatment after March 18, 
 
1991, including the surgery in September 1991, and of his total 
 
disability until he reached maximum recovery two years later.  The work 
 
injury of November 26, 1990 was a cause of the treatment and disability 
 
between the date of injury and March 18, 1991 
 
 
 
                      CONCLUSIONS OF LAW
 
 
 
 I.  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 to 
 
determine from the completeness of the premise given the expert or 
 
other surrounding circumstances.  Bodish v. Fischer, Inc., 257 Iowa 
 
516, 133 N.W.2d 867 (1965).
 
 
 
Furthermore, if the available expert testimony is insufficient alone to 
 
support a finding of causal connection, such testimony may be coupled 
 
with non-expert testimony to show causation and be sufficient to 
 
sustain an award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
N.W.2d 911, 915 (1966).  Such evidence does not, however, compel an 
 
award as a matter of law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 
 
531, 536 (1974).  To establish compensability, the injury need only be 
 
a significant factor, not be the only factor causing the claimed 
 
disability.  Blacksmith at 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).
 
 
 
As the claimant has shown that the work injury in 1988 was a cause of 
 
permanent physical impairment or limitation upon activity involving the 
 
body as a whole, the degree of permanent disability must be measured 
 
pursuant to Iowa Code section 85.34(2)(u).  However, unlike scheduled 
 
member disabilities, the degree of disability under this provision is 
 
not measured solely by the extent of a functional impairment or loss of 
 
use of a body member.  A disability to the body as a whole or an 
 
"industrial disability" is a loss of earning capacity resulting from 
 
the work injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 
 
258 N.W. 899 (1935).  A physical impairment or restriction on work 
 
activity may or may not result in such a loss of earning capacity.  
 
 
 
Examination of several factors determines the extent to which a work 
 
injury and a resulting medical condition caused an industrial 
 
disability.  These factors include the employee's medical condition 
 
prior to the injury, immediately after the injury and presently; the 
 
situs of the injury, its severity and the length of healing period; the 
 
work experience of the employee prior to the injury, after the injury 
 
and potential for rehabilitation; the employee's qualifications 
 
intellectually, emotionally and physically; earnings prior and 
 
subsequent to the injury; age; education; motivation; functional 
 
impairment as a result of the injury; and inability because of the 
 
injury to engage in employment for which the employee is fitted.  Loss 
 

 
 
 
 
 
 
 
 
 
of earnings caused by a job transfer for reasons related to the injury 
 
is also relevant.  See Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 
 
3 Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision, 
 
February 28, 1985).
 
 
 
In the case sub judice, it was found that claimant suffered a 60 
 
percent loss of his earning capacity as a result of the work injury in 
 
1988.  Such a finding entitles claimant to 300 weeks of permanent 
 
partial disability benefits as a matter of law under Iowa Code section 
 
85.34(2)(u) which is 60 percent of 500 weeks, the maximum allowable 
 
number of weeks for an injury to the body as a whole in that 
 
subsection. 
 
 
 
Claimant's entitlement to permanent partial disability also entitles 
 
him to weekly benefits for healing period under Iowa Code section 85.34 
 
from the date of injury until claimant returns to work; until claimant 
 
is medically capable of returning to substantially similar work to the 
 
work he was performing at the time of injury; or, until it is indicated 
 
that significant improvement from the injury is not anticipated, 
 
whichever occurs first.  Healing period may terminate and then begin 
 
again.  Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice 
 
Section 13-3.  Willes v. Lehigh Portland Cement Co., I-2 Iowa Indus. 
 
Comm'r Dec. 485 (1984); Riesselman v. Carrol Health Center, 3 Iowa 
 
Indus. Comm'r Rep. 209 (App. Dec. 1982); Clemens v. Iowa Veterans Home, 
 
I-1 Iowa Indus. Comm'r Dec. 35 (1984).
 
 
 
Although we had in this case a subsequent injury, that injury was not 
 
found to permanently aggravate the condition following a brief period 
 
of recovery.  The subsequent surgery and healing period was found to be 
 
the result of the original injury and benefits will be awarded 
 
accordingly.
 
 
 
II.  Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
payment of reasonable medical expenses incurred for treatment of a work 
 
injury.  Claimant is entitled to an order of reimbursement if he has 
 
paid those expenses.  Otherwise, claimant is entitled only to an order 
 
directing the responsible defendants to make such payments directly to 
 
the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
In the case at bar, an award of expenses listed in exhibits 7 and 8 
 
will be made consistent with the findings of fact relative to the two 
 
injuries.
 
 
 
                               ORDER
 
 
 
1.  Defendant, Johnson Trucking, shall pay temporary total disability 
 
benefits to claimant from November 26, 1990 through March 18, 1991, at 
 
the rate of two hundred eighty-five and 59/l00 dollars ($285.59) per 
 
week and the medical expenses listed in exhibits 7 and 8 incurred by 
 
claimant during that period of time, less credit for benefits already 
 
paid.
 
 
 
2.  Defendant, Jet Gas, shall pay to claimant three hundred (300) weeks 
 
of permanent partial disability benefits at a rate of three hundred 
 
twelve and 97/l00 dollars ($312.97) per week from May 22, 1988.
 
 
 
3.  Defendant, Jet Gas, shall pay to claimant additional healing period 
 
benefits from September 10, 1991 through September 9, 1993 at the rate 
 
of three hundred twelve and 97/l00 dollars ($312.97) per week.
 
 
 
4.  Defendant, Jet Gas, shall pay the medical expenses listed in 
 
exhibits 7 and 8 not ordered paid by defendant, Johnson Trucking, in 
 
paragraph one above.
 
 
 
5.  Both defendants shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against this award for all benefits previously 
 
paid.
 
 
 
6.  Both defendants shall pay interest on any unpaid weekly benefits 
 
awarded herein as set forth in Iowa Code section 85.30. 
 
 
 
7.  Defendant, Jet Gas, shall pay the costs of this action pursuant to 
 
rule 343 IAC 4.33, including reimbursement to claimant for any filing 
 
fees paid in this matter, except that defendant, Johnson Trucking, 
 
shall pay its own costs.
 
 
 
8.  Both defendants shall file activity reports on the payment of this 
 
award as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of February, 1995.                          
 

 
 
 
 
 
 
 
 
 
 
 
 
 
                               _____________________________
 
                               LARRY P. WALSHIRE                            
 
                               DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
 
 
Copies To:
 
 
 
Mr. William Bauer
 
Attorney at Law
 
100 Valley St
 
PO Box 517 
 
Burlington  IA  52601
 
 
 
Mr. Steven E. Ort
 
Attorney at Law
 
121 W Main St
 
New London  IA  52645
 
 
 
Mr. James D. Hoffman
 
Attorney at Law
 
1000 Firstar Center
 
201 W Second St
 
Davenport  IA  52801
 
          
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 5-1803
 
                                 Filed February 23, 1995
 
                                 LARRY P. WALSHIRE
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
          
 
GERARD WARD,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                 File Nos. 876141, 970214
 
JET GAS, INC. and WILLIAM     
 
JOHNSON TRUCK LINE, INC.,     
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL COMPANIES    
 
and HERITAGE INSURANCE   
 
COMPANY,  
 
          
 
     Insurance Carriers, 
 
     Defendants.    
 
_________________________________________________________________
 
 
 
 
 
5-1803
 
Nonprecedential, extent of disability case.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL PRIEBE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 876297
 
            IOWA PERIODICALS,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Daniel Priebe, against his employer, Iowa 
 
            Periodicals, and its insurance carrier, Wausau Insurance 
 
            Companies, defendants.  The case was heard on May 8, 1990, 
 
            in Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant and the testimony of Lois Sanchez, rehabilitation 
 
            analyst.  Additionally, the record consists of joint 
 
            exhibits 1-7.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the alleged injury and the 
 
            disability; and, 2) whether claimant is entitled to 
 
            permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is nearly 35 years old.  He is married with 
 
            three children.  He graduated from high school in 1974 and 
 
            commenced his employment with the precursor of 
 
            defendant-employer.
 
            
 
                 Claimant testified that on January 6, 1988, he was 
 
            delivering items for his employer when he felt a sharp pop 
 
            in his left hip and buttock area.  His last day of work was 
 
            January 21, 1988.  On February 11, 1988, Robert O. Jones, 
 
            M.D., performed an L-4 left laminectomy with the removal of 
 
            a partially sequestral disk.
 
            
 
                 Subsequent to his surgery, claimant engaged in a work 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            hardening program.  Thomas W. Bower, L.P.T., wrote in his 
 
            report of August 8, 1988:
 
            
 
                 It would be my recommendation, that we place this 
 
                 patient into a vocational rehab program and look 
 
                 for job change at this time.  It is doubtful that 
 
                 this patient can return back to a work situation 
 
                 which is safe, certainly into a heavy work 
 
                 situation as he was doing before.  Dan tells me 
 
                 the employer wants to keep him and will modify the 
 
                 job situation to meet his needs and certainly this 
 
                 would be acceptable if this can occur within the 
 
                 guides of the restrictions noted above.  Dan also 
 
                 in the same token is somewhat concerned about job 
 
                 security in that if they do modify a job will they 
 
                 still continue to need his services in the future.  
 
                 I think these are certainly legitimate concerns at 
 
                 this time.
 
            
 
                 Overall, certainly we are looking at some kind of 
 
                 job change whether it be vocational or 
 
                 modification within the job site and this needs to 
 
                 be expedited as quickly as possible.
 
            
 
                 Mr. Priebe has given us 100 percent effort during 
 
                 the course of the work hardening program and we 
 
                 feel at this point has reached his maximum medical 
 
                 recovery at least from a work hardening 
 
                 standpoint.
 
            
 
                 After reviewing Mr. Bowers' report, Dr. Jones concurred 
 
            with Mr. Bowers.  Dr. Jones opined:
 
            
 
                 Mr. Priebe has a permanent physical impairment of 
 
                 the low back as related to the body as a whole.  I 
 
                 would estimate is at 8 to 10 percent which in turn 
 
                 must be related to his industrial capacity or lack 
 
                 thereof.  He should attend Vocational 
 
                 Rehabilitation and change his occupation to one 
 
                 which will not require excessive use of the low 
 
                 back or prolonged sitting/driving or bending, 
 
                 pushing, pulling, lifting, twisting, etc.
 
            
 
                 As of July 10, 1989, Dr. Jones wrote in his report:
 
            
 
                 As requested, I examined Mr. Priebe on July 7.  He 
 
                 still complains about low back pain but his left 
 
                 leg pain that he had before lumbar disc surgery in 
 
                 February, 1988 is gone.  He is definitely limited 
 
                 in the way of what he can do and what he can't do.  
 
                 He is able to mow the grass but has been unable to 
 
                 find employment because of his back surgery.  His 
 
                 wife delivers in one month.  He is seeking to go 
 
                 to college in the fall and try to obtain some job 
 
                 requiring less stresses of the back.  Because of 
 
                 his inability to find a job this past year and one 
 
                 half, he has had some depression.
 
            
 
                 Forward bending was accomplished at 75 to 80 
 
                 degrees and backward bending to 15 degrees.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Straight leg raising at 45 degrees on the left 
 
                 gave low back pain.  He got on his side in order 
 
                 to get up.
 
            
 
                 I do not think this man can do heavy work, but if 
 
                 he could find some light duty I think he could 
 
                 accomplish this.  I suggested he continue the half 
 
                 situps and I gave him a script for Darvocet-N for 
 
                 pain.  His gait and station were normal and motor 
 
                 function of lowers was normal.  I will see him 
 
                 again should the need arise.
 
            
 
                 Defendant-employer terminated claimant on August 12, 
 
            1988, because he could not perform his job duties.
 
            
 
                 Claimant participated in extensive vocational 
 
            rehabilitation through the State of Iowa.  In the fall of 
 
            1989, claimant began his college career at Des Moines Area 
 
            Community College.  At the time of the hearing, claimant was 
 
            desirous of a career in human services, possibly in the area 
 
            of job placement.  His GPA at that time was 3.25.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 6, 
 
            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 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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, 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 sur
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            rounding 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).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has proven by a preponderance of the evidence, 
 
            the requisite causal connection between his injury of 
 
            January 6, 1988 and his permanent condition.  Dr. Jones, the 
 
            treating surgeon, supports this allegation.
 
            
 
                 The main point of contention between the parties is the 
 
            nature and extent of claimant's permanent disability.  
 
            Claimant is functionally impaired.  He is to restrict his 
 
            repetitive lifting.  He is not to lift more than 45 pounds 
 
            on any one lift.  Claimant's surgeon has not allowed 
 
            claimant to return to his former position as a route 
 
            salesperson.  The physician has prescribed light duty work.  
 
            Dr. Jones has assessed an 8 to 10 percent functional 
 
            impairment rating.  He has restricted claimant from 
 
            excessive use of the low back or prolonged sitting or 
 
            driving, from excessive bending, pushing, pulling, lifting 
 
            and twisting.
 
            
 
                 Unquestionably, claimant is industrially disabled.  He 
 
            has not been able to return to his former position where he 
 
            has earned gross wages in the mid-twenties range plus 
 
            benefits.  Claimant has been terminated.  He is highly 
 
            motivated.  Currently, he is enrolled as a student.  He 
 
            hopes to obtain a degree in the human services area.  Such 
 
            positions, while commendable, are notoriously underpaid.  
 
            Wages for such positions are in the low to mid-twenties 
 
            range.  Claimant has at least two years of schooling left.  
 
            He may need a masters degree to even obtain the minimum 
 
            salary expectations.  Claimant has a loss of earnings.  He 
 
            also has a loss of earning capacity.  He has permanent and 
 
            severe restrictions imposed upon him.  The restrictions 
 
            reduce the number of jobs available to claimant.
 
            
 
                 Therefore, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant has a 25 
 
            percent permanent partial disability.
 
            
 
                                      order
 
            
 
                 Defendants are to pay one hundred twenty-five (125) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred forty-eight and 42/l00 dollars ($248.42) per 
 
            week commencing on November 25, 1988.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to section 85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this rule 343 IAC 3.1.
 
            
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines  IA  50311
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed February 20, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL PRIEBE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 876297
 
            IOWA PERIODICALS,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803
 
            Claimant was awarded a 25 percent permanent partial 
 
            disability.  Unquestionably, claimant was industrially 
 
            disabled.  He was precluded from returning to his position 
 
            as a periodical route salesperson where he earned nearly 
 
            $25,000 annually.  Claimant was highly motivated.  He had 
 
            enrolled in college in the social sciences.  Claimant had a 
 
            loss of earning capacity and an actual loss of earnings.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KELLY CLUTE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 876351
 
            COUNTRYSIDE RETIREMENT HOME,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 10, 1989.  She allegedly sustained a 
 
            traumatic injury to her back while helping to move a patient 
 
            from a wheelchair to a bed.  She now seeks benefits under 
 
            the Iowa Workers' Compensation Act from her employer, 
 
            Countryside Retirement Home, and its insurance carrier, 
 
            Travelers Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Sioux 
 
            City, Iowa, on March 2, 1990.  The record consists of joint 
 
            exhibits 1 through 34 and the testimony of claimant, Nanette 
 
            Ehrsam, Anna Mae Maier and Loraine Edmunds.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and Countryside Retirement Home at the time of the 
 
            alleged injury; that all requested medical benefits have 
 
            been paid by defendants; that defendants have paid no 
 
            compensation prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of her employment on June 27, 1988; whether the 
 
            alleged injury caused either temporary or permanent 
 
            disability; the extent of claimant's entitlement to 
 
            temporary disability or healing period benefits; the extent 
 
            of claimant's entitlement to compensation for permanent 
 
            disability, the nature of permanent disability if it exists, 
 
            and the commencement date thereof; the rate of compensation 
 
            (although it is stipulated that claimant was entitled to one 
 
            exemption and was unmarried at the time of her injury; 
 
            taxation of costs.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant began work as a part-time nurse's aide for 
 
            defendant Countryside Retirement Home ("Countryside") in 
 
            April, 1987.  During the 13 weeks prior to the work injury, 
 
            she earned a total of $1,049.98 at an hourly rate of $4.20 
 
            for the first week and $4.30 thereafter.  No overtime hours 
 
            were worked.
 
            
 
                 Prior to June 27, 1988, claimant had no history of back 
 
            problems.  On June 27, she and another nurse's aide 
 
            attempted to move a resident from a "Geri" chair to her bed.  
 
            Unfortunately, the resident's legs buckled under and caused 
 
            claimant to take a sudden and excessive weight which 
 
            immediately caused pain in the lower back over the right 
 
            buttock.  Claimant continued to work in the belief that she 
 
            was not seriously injured, but her pain did not quickly 
 
            resolve.
 
            
 
                 Claimant was eventually off work for seven days from 
 
            July 13 through 19 due to back pain.  While she may have 
 
            missed one or two days thereafter due to back pain, the 
 
            evidence is insufficiently specific to find what, if any, 
 
            additional days were lost due to this injury.
 
            
 
                 Claimant proved dilatory in notifying Countryside of 
 
            the work injury.  On July 15, 1988, she spoke to director of 
 
            nurses Loraine Edmunds and in response to a specific 
 
            question as to how she hurt her back stated only that she 
 
            did not know, but that it might have been at work.  Formal 
 
            notification that she believed she had sustained a work 
 
            injury was not made until September 8, 1988 to Anna Mae 
 
            Maier.  However, on July 14, 1988, she advised treating 
 
            physician Richard Budensiek, D.O., that she believed she had 
 
            hurt her back three weeks ago (the chart notes erroneously 
 
            state "months") working as a nurse's aide and that pain had 
 
            recently been worse.
 
            
 
                 Defendants are of the view that no work injury 
 
            occurred, and that claimant hurt her back while running as 
 
            Dr. Budensiek first believed, pointing out the substantial 
 
            delay in reporting the work injury and suggesting that 
 
            somehow an unrelated lipoma removed on September 30, 1989 
 
            might have something to do with her complaints of back pain.  
 
            Their reliance on Dr. Budensiek's opinion is misplaced, 
 
            since he revised his opinion on May 11, 1989, writing that 
 
            claimant had been injured in a work-related incident while 
 
            working for Countryside.  Dr. Budensiek specified that 
 
            claimant's running did not cause her back pain and cessation 
 
            (at his advice) had not alleviated pain.  The only medical 
 
            opinion as to causation in this record is that claimant's 
 
            back pain was caused by the work injury.  This observer 
 
            found claimant to be a credible witness and finds that she 
 
            did suffer a lifting injury as per her testimony.  Claimant 
 
            was only 19 years old at the time of the injury and her 
 
            callowness goes far in explaining the reporting delay.
 
            
 
                 In his letter of May 11, 1989, Dr. Budensiek opined 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that claimant suffered from chronic low back syndrome.  He 
 
            pointed out there was no evidence of neurologic injury or 
 
            disc disease and that claimant's prognosis was good.  He 
 
            anticipated that she would recover from the problem, but 
 
            could not estimate a date.  On December 7, 1989, Dr. 
 
            Budensiek wrote that claimant had recurrent back pain in the 
 
            past two weeks and opined that claimant would continue to 
 
            experience back pain periodically throughout her life.  He 
 
            did not anticipate that episodes of back pain would cause 
 
            paralysis, muscle weakness or severe disability, but would 
 
            upon occasion "interfere with her ability to work."
 
            
 
                 Dr. Budensiek did not rate claimant as having sustained 
 
            a permanent impairment to the back (she has had full range 
 
            of motion throughout) and apparently the only medical 
 
            restriction imposed was against long-distance running.  
 
            Claimant is quite athletic and was training for a marathon 
 
            at the time of her injury.
 
            
 
                 Claimant was also seen by Alan Pechacek, M.D.  Dr. 
 
            Pechacek wrote on May 8, 1989 that he had not seen claimant 
 
            since November 17 of the preceding year and assumed she was 
 
            asymptomatic and fully functional without restrictions.
 
            
 
                 Claimant was also seen for rheumatologic evaluation by 
 
            Steven J. Wees, M.D.  Dr. Wees wrote on April 3, 1989 that 
 
            claimant suffered from chronic low back syndrome.  Dr. Wees 
 
            did not rate claimant's impairment or impose restrictions.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on June 27, 1988 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 Claimant's credible testimony establishes that she 
 
            suffered pain in a lifting incident on June 27, 1988.  Due 
 
            to pain commencing immediately thereafter becoming worse, 
 
            she was forced to miss seven days of work beginning July 13, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1988.  Claimant's testimony and the unrebutted medical 
 
            opinion of Dr. Budensiek establish as fact that she 
 
            sustained an injury arising out of and in the course of 
 
            employment, there being no dispute that she was performing 
 
            her normal duties while helping move the resident from chair 
 
            to bed.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. School 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 
 
            110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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 dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant has established that her current condition of 
 
            back pain is causally related to the work injury.  Before 
 
            the injury, she had no history of back pain, and she has had 
 
            intermittent pain since.  The only medical opinion of 
 
            record, that of Dr. Budensiek, establishes the causal nexus.
 
            
 
                 An injury to the back is an injury to the body as a 
 
            whole and compensated industrially.  Industrial disability 
 
            means loss of earning capacity.  Diederich v. Tri-City Ry. 
 
            Co., 219 Iowa 587, 258 N.W. 899 (1935).  However, claimant 
 
            has not shown any loss of earning capacity as a result of 
 
            her injury.
 
            
 
                 None of the three physicians in this case have rated 
 
            claimant has having sustained any permanent impairment.  
 
            None have imposed any restrictions, except perhaps a 
 
            reduction in running.  Claimant has testified to an 
 
            inability to engage in athletics to the same extent as was 
 
            previously the case, but she was not a professional athlete 
 
            at the time of the injury, and it would be speculative in 
 
            the extreme to find that potential earnings as a 
 
            professional athlete have been diminished.  Claimant was 
 
            able to return to the same job after her injury.  There is 
 
            no showing whatsoever that she is unable now or in the 
 
            future to engage in any gainful occupation for which she 
 
            might have been suited prior to the injury.
 
            
 
                 No doubt claimant suffers bouts of pain as a result of 
 
            the injury.  Pain and suffering is a proper element of 
 
            damages in tort, but it is not compensable as industrial 
 
            disability unless there is an impact on earning capacity.  
 
            As no such impact appears, claimant has failed to establish 
 
            any permanent disability of a compensable nature.
 
            
 
                 Under Iowa Code sections 85.32 and 85.33, temporary 
 
            disability which does not extend beyond fourteen days begins 
 
            on the fourth day of disability after the injury and is 
 
            payable until the employee has returned to work or is 
 
            medically capable of returning to substantially similar 
 
            employment, whichever first occurs.  Accordingly, claimant 
 
            is entitled to four days of temporary total disability 
 
            benefits commencing July 16, 1988.  
 
            
 
                 The parties also dispute claimant's rate of 
 
            compensation, although they agree she was single and 
 
            unmarried on the injury date.  Under Iowa Code section 
 
            85.36(6), weekly earnings in the case of an employee paid on 
 
            an hourly basis are computed by dividing total earnings (not 
 
            including overtime premium pay) earned in the last completed 
 
            period of 13 consecutive calendar weeks immediately 
 
            preceding the injury by 13.  Claimant's total earnings 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            during those 13 weeks, $1,049.98, divided by 13 equals 
 
            $80.77.  The Guide to Iowa Workers' Compensation Claim 
 
            Handling published by this office and effective July 1, 1987 
 
            shows that an individual so situated is entitled to a weekly 
 
            rate of $70.89.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant zero point five 
 
            seven one (0.571) weeks of compensation at the weekly rate 
 
            of seventy and 89/100 dollars ($70.89) commencing July 16, 
 
            1988 and totalling forty and 48/100 dollars ($40.48).
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. James M. Cosgrove
 
            Mr. James P. Comstock
 
            Attorneys at Law
 
            1109 Badgerow Building
 
            P.O. Box 1828
 
            Sioux City, Iowa  51102
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30; 1801; 1803
 
                           Filed November 29, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KELLY CLUTE,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 876351
 
            COUNTRYSIDE RETIREMENT HOME,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant found to have sustained injury arising out of and 
 
            in the course of employment in lifting incident.
 
            
 
            1801; 1803
 
            Claimant lost seven days of work due to back injury (chronic 
 
            low back syndrome).  Although she suffers recurrent bouts of 
 
            pain, no physician rated impairment, and the only medical 
 
            restriction was against long-distance running.  Claimant was 
 
            not a professional athlete.  HELD:  Pain alone does not 
 
            establish industrial disability unless there is an impact on 
 
            earning capacity.  Claimant was awarded four days of 
 
            temporary total disability.