BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHARLES STRANATHAN,
 
                                                    File No. 878747
 
              Claimant,
 
                                                    D E C I S I O N
 
         vs.
 
                                                          O N
 
         CEI TRUCK & AG EQUIPMENT,
 
                                                     M E D I C A L
 
              Employer,
 
                                                     B E N E F I T S
 
         and
 
         
 
         THE TRAVELERS COMPANIES,                      F I L E D
 
         
 
              Insurance Carrier                       APR 18 1990
 
              Defendants.
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
                                           
 
                                           
 
                                      INTRODUCTION
 
         
 
              This is a proceeding for medical benefits under Iowa Code 
 
         section 85.27 brought by the claimant, Charles Stranathan, 
 
         against CEI Truck & AG Equipment, employer, and The Travelers 
 
         Companies, insurance carrier, defendants, to recover medical 
 
         benefits as a result of an injury sustained on March 10, 1988.  
 
         This matter came on for hearing before the deputy industrial 
 
         commissioner in Des Moines, Iowa, on March 28, 1990.  The record 
 
         consists of the testimony of the claimant's widow, Faye 
 
         Stranathan, claimant's exhibits 1 and 2, and defendant employers' 
 
         exhibits 1 through 9.
 
         
 
                                      ISSUES
 
         
 
              The sole issue in this case is whether alternate care was 
 
         necessary and its reasonableness.  In other words, are defendants 
 
         responsible for the cost of a Kin-Air bed versus a water mattress 
 
         or gel foam mattress, the difference in cost being $7,501.20 per 
 
         month.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Faye Stranathan, claimant's surviving widow, testified her 
 
         husband, the claimant, died March 8, 1990 after having been in a 
 
         coma since his work injury on March 10 1988.
 
         
 
              Mrs. Stranathan described the Kin-Air bed used part of the 
 
         time by claimant while in the hospital.  Claimant said it was run 
 
         by a computer.  She said it let air in one side and out the other 
 
         and changed with body movements.  Mrs. Stranathan emphasized that 
 
         the bed did move by itself notwithstanding Dr. VanGilder's 
 
         contention the bed didn't move.  She said that from May 1988 
 
         until the fall 1989, she was never told by defendant insurance 
 
         company or defendant employer that they were objecting to the 
 
         Kin-Air bed.. She acknowledged that defendant insurance company 
 
         desired to move claimant to a nursing home, but they decided not 
 
         to when they found out the cost was about the same.  Mrs. 
 
         Stranathan said the defendant insurance company representative, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mary Jo Ragaller, told her April 4, 1988 that they would pay 
 
         claimant's medical expenses the rest of claimant's life.  Mrs. 
 
         Stranathan said no other contact was made as to not paying the 
 
         medical bills so claimant was left in the Kin-Air bed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mrs. Stranathan said that when she heard later that the 
 
         insurance company wasn't going to pay, she contacted her attorney 
 
         and took immediate action leading to this court hearing.  Mrs. 
 
         Stranathan related the difficult life and death decisions she had 
 
         to make.  She did not want claimant on a respirator.  She said 
 
         she did not make the decision as to the type of care regarding 
 
         preventing infection.  She stated Mercy Hospital said claimant 
 
         should stay with the Kin-Air bed to prevent skin problems.  Mrs. 
 
         Stranathan said the hospital feared a skin breakdown would occur 
 
         with the other traditional types of beds and then they would also 
 
         have to fight that condition.  Mrs. Stranathan said there had 
 
         been one incident of skin breakdown when claimant was on another 
 
         type of bed.
 
         
 
              Mrs. Stranathan then acknowledged that claimant died of 
 
         pulmonary embolism and not a skin breakdown problem.  Mrs. 
 
         Stranathan acknowledged she was present when claimant was taken 
 
         to Iowa City in March 1989.  She said she understood and saw Dr. 
 
         VanGilder's letter indicating claimant's skin maintenance could 
 
         be provided by a water or gel foam mattress.  Claimant 
 
         acknowledged Mary Jo Ragaller, defendant insurance 
 
         representative, was investigating the possibility of taking 
 
         claimant off the Kin-Air bed and putting him on a water or gel 
 
         bed.  Mrs. Stranathan insisted she was never told they were 
 
         taking claimant off the Kin-Air bed.  Mrs. Stranathan related 
 
         that Mary Jo Ragaller was trying to move claimant to Americana 
 
         Nursing Home but discovered the Kin-Air bed could not be moved 
 
         there.  She recalled that it was in January 1989 that Mary Jo 
 
         first mentioned alternate care.  In other words, a bed other than 
 
         the Kin-Air and the possibility of moving claimant to Americana 
 
         Nursing Home.
 
         
 
              Richard D. Rethorst, M.D., testified through his deposition 
 
         on March 1, 1990, that he first started seeing claimant in May 
 
         1988 at which time the claimant was comatose.  He said claimant 
 
         was transferred from University of Iowa Hospitals to Mercy 
 
         Hospital in Cedar Rapids because claimant's acute care was over 
 
         and he was entering long-term care at the hospital's skilled 
 
         nursing facility.  He said claimant originally was in a Clinitron 
 
         bed.  He described a Clinitron bed as a type of bed that is used 
 
         to limit the amount of pressure placed on the skin which 
 
         hopefully prevents any skin irritation because of claimant's 
 
         vegetable state.  He said claimant was on this bed from the date 
 
         of his admission May 26, 1989 until August 1989, at which time 
 
         the claimant was placed on a Kin-Air bed.  The doctor said the 
 
         beds are basically the same, operating on an air system.  He said 
 
         there are no mechanical or pneumatic pressure movements.  Dr. 
 
         Rethorst said he has been rather surprised by the excellent 
 
         results he has had and they have been able to maintain good 
 
         quality skin throughout claimant's admission.
 
         
 
              The doctor was asked about the gel foam and waterbed 
 
         mattress. He said the main difference between these and the 
 
         Kin-Air is the amount of pressure on the skin.  He said the gel 
 
         foam and waterbed involve a greater amount of pressure on the 
 
         skin.  The doctor emphasized he never has used the gel foam or 
 
         soft-care mattress for comatose or semi-comatose patients.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Rethorst opined claimant should not be moved straight to 
 
         a water-type mattress or gel foam mattress.  He further opined 
 
         that if claimant were moved, claimant would suffer skin 
 
         irritations as a result of the higher pressure with that type of 
 
         bed.  Dr. Rethorst stated:
 
         
 
              [S]kin breakdown would cause loss of protein in this 
 
              debilitated patient which can have dire consequences in 
 
              itself -- edema, fluid congestion in the lungs, et cetera, 
 
              as well as a route of infection into his body and 
 
              bloodstream.
 
         
 
         (Claimant's Exhibit 1, p. 20)
 
         
 
              He said this could be life threatening to claimant.  The 
 
         doctor stated his opinion in an abbreviated form is also 
 
         expressed in a letter he wrote (Cl. Ex. 2).
 
         
 
              The doctor acknowledged that he believed claimant will never 
 
         regain consciousness again and will never experience meaningful 
 
         life at any time hereafter.  He said claimant has not 
 
         demonstrated any voluntary movements.
 
         
 
              Dr. Rethorst said that in literature he had read, a skin 
 
         pressure below 32 mm. does not produce skin breakdown.  He said 
 
         the Kin-Air produces below 32 mm. and that the waterbed and foam 
 
         gel mattress produced levels above that.  He said the Clinitron 
 
         bed produces below 32 mm. pressure.
 
         
 
              John C. VanGilder, M.D., a neurologist, testified by way of 
 
         deposition on February 27, 1989 that he is a physician at the 
 
         University of Iowa Hospitals and Clinics."  He saw claimant on 
 
         March 30, 1987, pursuant to claimant having suffered a missile 
 
         injury to the brain.  Claimant was comatose at that time.  He 
 
         said he did not prescribe any particular care, especially skin 
 
         care, that claimant should have when he was sent from the 
 
         University of Iowa Hospitals to Mercy Hospital in Cedar Rapids.  
 
         He said claimant was in a Biodyne bed in the University of Iowa 
 
         Hospitals, which bed is to prevent skin breakdown.
 
         
 
              Dr. VanGilder was referred to a September 21, 1989 letter of 
 
         Mary Jo Ragaller and his October 23, 1989 reply to her.  He 
 
         indicated in the letter that claimant could be adequately cared 
 
         for by a waterbed or a gel foam mattress.  He said he did not 
 
         think "an air bed would be particularly superior to a waterbed 
 
         mattress or gel foam mattress.  They all accomplish essentially 
 
         the same thing in just different media." (VanGilder Deposition, 
 
         Employer's Exhibit 4, page 15)
 
         
 
              The doctor could not specifically answer why claimant was in 
 
         a Biodyne bed at the University of Iowa Hospitals rather than a 
 
         waterbed or gel foam bed.  He conjectured they probably used 
 
         whatever they had available at the time.  He did not think one 
 
         bed had any advantage over the other (Empl. Ex. 5, p. 18)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services. The employer shall also furnish reasonable and 
 
              necessary crutches, artificial members and appliances but 
 
              shall not be required to furnish more than one set of 
 
              permanent prosthetic devices.
 
         
 
                   ....
 
         
 
                   Charges believed to be excessive or unnecessary may be 
 
              referred to the industrial commissioner for determination, 
 
              and the commissioner may, in connection therewith, utilize 
 
              the procedures provided in sections 86.38 and 86.39 and 
 
              conduct such inquiry as the commissioner shall deem 
 
              necessary.  Any institution or person rendering treatment to 
 
              an employee whose injury is compensable under this section 
 
              agrees to be bound by such charges as allowed by the 
 
              industrial commissioner and shall not recover in law or 
 
              equity any amount in excess of that set by the commissioner.
 
         
 
                   For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
              The 85.27 issue herein is basically limited to whether 
 
         defendants are responsible for providing claimant with a Kin-Air 
 
         bed versus a waterbed or gel foam mattress, the difference in 
 
         cost being $7,501.20 per month.  It appears claimant has been 
 
         using the Kin-Air bed since August 1989 until his death, March 8, 
 
         1990. Defendants contend they should not be responsible for the 
 
         $7,501.20 per month for these approximately 20 months.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant contends she did not know that defendants were not 
 
         going to pay for the Kin-Air bed until January 1990, at which 
 
         time she contacted her attorney.  This date corresponds to a 
 
         motion for temporary injunction filed in the industrial 
 
         commissioner's office, of which file the undersigned takes 
 
         official notice.  This pleading led to the early setting of this 
 
         matter for hearing.  Of course, no one knew claimant was going to 
 
         die as soon as he did. Defendants sent a letter to claimant's 
 
         attorney and Mercy Hospital on March 5, 1990 indicating they were 
 
         not going to pay the January 1990 amount of $7,501.20, which 
 
         represents the monthly cost of the Kin-Air bed (Empl. Ex. 5).  It 
 
         appears defendants paid all the bills prior to this January 1990 
 
         bill involving the Kin-Air bed. Payment is not an admission of 
 
         liability.  There is no question of liability in this case.  The 
 
         employer appeared to first raise this issue of the Kin-Air bed in 
 
         January 1989.  Mary Jo Ragaller, defendant insurance company's 
 
         representative, and a nurse, was going to investigate alternative 
 
         care.  Apparently, the placing of claimant in a nursing home was 
 
         looked into but the costs were similar.
 
         
 
              The greater weight of evidence shows there was no indication 
 
         that defendants were, in fact, not going to pay the Kin-Air bed 
 
         until January 1990.  Claimant was relying on defendants' original 
 
         assurance in 1988 that defendants were going to pay for 
 
         claimant's medical care for the rest of his life.  Obviously, 
 
         claimant's wife would have taken action herself earlier had she 
 
         known defendants were contending retroactively that the Kin-Air 
 
         bed was not necessary and reasonable and, therefore, expected 
 
         claimant to pay the $7,501.20 per month.  At that time, in 
 
         January 1990, the then disputed amount was approximately  
 
         $127,517 (17 months times $7,501.20).  Claimant, in early 1989, 
 
         had already made other serious and emotional decisions as to 
 
         prolonging or not prolonging claimant's life with certain other 
 
         medical means.  It is obvious she could not and would not have 
 
         afforded the Kin-Air bed on her own.  Claimant had a right to 
 
         rely on the statement and good faith of the defendants.  Claimant 
 
         did not and was not the one who chose this care.  Claimant's wife 
 
         did not choose the care.  The care was provided by defendants and 
 
         20 months later they took definitive action to change their 
 
         choice of care regarding the Kin-Air bed. Although the defendants 
 
         did not specifically specify a particular bed, they had the 
 
         opportunity to raise the issue when claimant was transferred to 
 
         Mercy Hospital in Cedar Rapids.  Instead they continued to pay 
 
         the bills.  It is clear and convincing that defendants thought 
 
         that claimant would lie in his comatose state for a lengthy 
 
         undetermined period of time and decided in January 1990 that the 
 
         $7,501.20 a month under the circumstances was too much.  There 
 
         was obviously no hope claimant would ever regain consciousness.
 
         
 
              Iowa Code section 85.27 is usually raised in this instance 
 
         by the employee who objects to the nature of the care chosen and 
 
         provided by the employer to the employee and thereby seeks 
 
         alternate care.  In this instant case, the employee or his agent, 
 
         claimant's wife, is satisfied and the employer decides to change 
 
         its originally chose care for claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There is medical testimony as to the effectiveness of 
 
         certain beds to prevent skin deterioration which could, itself, 
 
         lead to death.  It is undisputed that one's skin must be 
 
         maintained or often death threatening sickness or disease can set 
 
         in. There is no dispute that Kin-Air or like beds provide the 
 
         best means of protecting the skin.  There is a dispute as to 
 
         whether substantially less expensive beds can accomplish the same 
 
         thing. Claimant was in a Biodyne bed at the University of Iowa 
 
         Hospitals while under the care of Dr. VanGilder, upon whose 
 
         testimony defendants rest as to the need or lack of need of a 
 
         Kin-Air bed. When claimant was transferred to Mercy Hospital in 
 
         Cedar Rapids, claimant was placed in a Clinitron bed for two 
 
         months and then thereafter until his death was placed in a 
 
         Kin-Air bed, which beds are basically similar to the Biodyne bed.  
 
         These beds have a similar goal.  It appears the Kin-Air is one of 
 
         the best state of the art beds to prevent skin pressure.  Dr. 
 
         VanGilder dismissed the University of Iowa's use of the Biodyne 
 
         bed for claimant versus the waterbed or gel foam mattress as if 
 
         it were the luck of the draw.  In other words, they use whatever 
 
         is available.  The undersigned questions this.  The fact is, 
 
         claimant was transferred to a bed at Mercy Hospital as close to 
 
         or similar to the bed claimant had at the University of Iowa 
 
         Hospitals.  Defendants were still choosing and controlling 
 
         claimant's care.  The undersigned believes there is no reason to 
 
         further dwell on the facts of medical evidence.  The evidence is 
 
         convincing that defendants are responsible for the medical bills 
 
         of claimant, including paying for the use of the Kin-Air bed.  
 
         The bed appears necessary and the cost reasonable under the 
 
         circumstances.  Defendants have chosen the care all along.  The 
 
         undisputed work injury led to claimant's early death.  The 
 
         undersigned is surprised considering all the evidence and 
 
         circumstances of this case, that it came on for hearing.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The defendants chose the care and treatment for the 
 
         claimant throughout claimant's illness and injury.
 
         
 
              2.  The Kin-Air bed is one of the best for preventing 
 
         deterioration of the skin in a person who is comatose and unable 
 
         to shift himself voluntarily.
 
         
 
              3.  The Kin-Air bed was a necessary and reasonable use of 
 
         medical equipment in the prevention of claimant's skin 
 
         deterioration, which deterioration itself could lead to death 
 
         threatening conditions if not prevented or maintained.
 
         
 
              4.  Defendants are responsible for all of claimant's medical 
 
         bills, including providing for and paying for the Kin-Air bed. 
 
         Claimant died March 8, 1990.
 
         
 
              5.  Defendants first officially notified claimant that they 
 
         were no longer paying for the Kin-Air bed by letter in January 
 
         1990, approximately 20 months after claimant started using the 
 
         Kin-Air bed with the knowledge of defendants who were choosing 
 
         and had control of claimant's care.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Defendants are responsible for payment of claimant's medical 
 
         bills, including the cost of the Kin-Air bed under the provisions 
 
         of Iowa Code section 85.27.
 
         
 
              Defendants chose claimant's care which involved the use of 
 
         the Kin-Air bed, under the provisions of Iowa Code section 85.27. 
 
         Defendants continued to control claimant's care from the 
 
         beginning of claimant's injury on March 10, 1988 until the date 
 
         of claimant's death, March 8, 1990.
 
         
 
                                      ORDER
 
         
 
              Defendants shall pay all of claimant's medical bills, 
 
         including the cost of claimant's use of the Kin-Air bed.
 
         
 
              Defendants shall pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 18th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Thomas D.Hobart
 
         Attorney at Law
 
         122 S Linn
 
         Iowa City, IA  52240
 
         
 
         Mr Raymond R Stefani
 
         Mr Steven A Stefani
 
         Attorneys at Law
 
         200 American Bldg
 
         101 2nd St SE
 
         Cedar Rapids, IA  52401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2500; 5-2700
 
                                            Filed April 18, 1990
 
                                            Bernard J. O'Malley
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES STRANATHAN,
 
                                                      File No. 878747
 
              Claimant,
 
         
 
         vs.                                          D E C I S I 0 N
 
         
 
         CEI TRUCK & AG EQUIPMENT,                          0 N
 
         
 
              Employer,                                M E D I C A L
 
         
 
         and                                           B E N E F I T S
 
         
 
         THE TRAVELERS COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-2700; 5-2500
 
         
 
              Held defendants are to pay for a Kin-Air bed costing 
 
         $7,501.20 per month.  Defendants chose care and after 
 
         approximately 18 months, decided they were no longer going to pay 
 
         and desired alternate care for claimant.  There was no other 
 
         issue.  Claimant was in a comatose state from date of injury 
 
         until his death 24 months later.
 
         
 
              A Kin-Air bed is a state of the art bed preventing minimum 
 
         skin pressure on patient unable to move voluntarily.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PATRICIA PARSONS,   
 
                      
 
                 Claimant, 
 
                                           File Nos. 1036183, 1036184
 
            vs.                                        and  878792
 
                      
 
            K MART,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            K MART SELF INS. PROGRAM,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration brought by the 
 
            claimant, Patricia Parsons, against her self-insured 
 
            employer, K Mart, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of injuries allegedly 
 
            sustained on March 11, 1988, August 11, 1988 and January 9, 
 
            1993.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner in Cedar Rapids, 
 
            Iowa, on May 18, 1994.  Claimant appeared in person and 
 
            through her counsel.   Defendants did not appear either 
 
            through a personal representative or through counsel.  A 
 
            first report of injury has been filed relative to the March 
 
            11, 1988 claimed date of injury.  First reports of injury 
 
            have not been filed relative to the August 11, 1988 and 
 
            January 9, 1993 claimed dates of injury.  The record 
 
            consists of the testimony of claimant and of claimant's 
 
            exhibits A through H. 
 
            
 
                                      ISSUES
 
            
 
                 Issues to be decided are:
 
            
 
                 1.  Whether an employer-employee relationship existed 
 
            between claimant and K Mart on the alleged injury date;
 
            
 
                 2.  Whether claimant did receive injuries arising out 
 
            of and in the course of her employment on the alleged injury 
 
            dates;
 
            
 
                 3.  Whether a causal relationship exists between the 
 
            claimed injuries and claimed disability;
 
            
 
                 4.  The nature and extent of any temporary or permanent 
 
            disability entitlement;
 
            
 
                 5.  Whether claimant is entitled to payment of certain 
 
            medical expenses under section 85.27; 
 
            
 
                 6.  Claimant's appropriate rate or rates of weekly 
 

 
            
 
            
 
            
 
            
 
            compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 46-year-old woman who remains employed at 
 
            K Mart, now as a customer checker.  She has completed ninth 
 
            grade and obtained a GED in 1993.  She has also completed a 
 
            short course in electrolysis and has previous employment 
 
            history in factory assembly, waitressing, and doing child 
 
            care. 
 
            
 
                 Claimant has been married for 28 years and has three 
 
            children, the youngest of whom is now 19.  This child was a 
 
            dependent of claimant's on all claimed injury dates.  It is 
 
            expressly found that claimant was married and entitled to 
 
            three exemptions on claimed injury dates.  
 
            
 
                 On March 11, 1988, claimant worked 24 hours per week 
 
            with K Mart at an hourly wage of $5.25.  It is expressly 
 
            found that claimant then had a gross weekly wage of $126 
 
            which resulted in a weekly compensation rate of $92.03.
 
            
 
                 Claimant worked as a filler on March 11, 1988.  In this 
 
            capacity she moved merchandise from the warehouse to the 
 
            sales floor.  Claimant reported feeling like her body, from 
 
            her head to her toes, had fallen asleep while moving a 
 
            flat-bed of pharmacy case packs that day.  She subsequently 
 
            fell at work.  Claimant was then off work for two weeks and 
 
            received benefits characterized as temporary total 
 
            disability benefits.  No permanent partial disability was 
 
            then paid.  
 
            
 
                 On August 11, 1988, claimant was working 30 hours per 
 
            week at a wage of $5.80 per hour.  It is expressly found 
 
            that claimant's gross weekly wage as of that date was $174 
 
            resulting in a weekly compensation rate of $125.18.
 
            
 
                 On August 11, 1988, claimant had returned to work with 
 
            K Mart working the late night crew.  That job involved 
 
            cleaning, painting, loading and unloading.  Claimant stated 
 
            that the weight she worked with varied with the merchandise 
 
            with which she was dealing.  Claimant began to experience 
 
            severe back muscle spasms and had difficulty walking.  On 
 
            direction of the K Mart personnel department, claimant 
 
            sought medical treatment with James W. Turner, M.D., an 
 
            orthopedist, first seeing him on August 17, 1988.  An MRI 
 
            study of September 28, 1988 was characterized as essentially 
 
            negative but for a very slight bulge at the L5-S1 disc 
 
            space.  Dr. Turner returned claimant to work on October 10, 
 
            1988 with a 20-pound lifting restriction.  Claimant did 
 
            receive temporary total disability benefits while off work 
 
            subsequent to August 11, 1988 and medical costs with Dr. 
 
            Turner were paid.  
 
            
 
                 On March 6, 1989, claimant presented at St. Luke's 
 
            Hospital Emergency Room and Trauma Center with severe low 
 
            back pain and spasms.  She was admitted to the hospital and 
 

 
            
 
             
 
            
 
            
 
            
 
            
 
            apparently treated with traction and bed rest until her 
 
            discharge on March 13, 1989.  On admission, claimant's 
 
            straight leg raising was positive bilaterally.  
 
            
 
                 Claimant underwent a CAT scan of the lumbar spine on 
 
            May 15, 1989.  This was interpreted as showing a herniated 
 
            disc at L4-L5 on the left.  On May 25, 1989, Dr. Turner 
 
            performed a partial hemilaminectomy with removal of extruded 
 
            disc fragment at that interspace.  Claimant subsequently 
 
            underwent physical therapy and rehabilitation at the Work 
 
            Injury Rehabilitation Center.  The center's notes reflect 
 
            that, on July 24, 1989, claimant was performing at a 
 
            sedentary strength level.  On July 27, 1989, Dr. Turner 
 
            opined that claimant likely would have permanent partial 
 
            impairment of 5 percent of the body as a whole.  No further 
 
            statement as to claimant's impairment is in evidence.  
 
            
 
                 On October 25, 1989, claimant presented to Dr. Turner 
 
            complaining of aching discomfort across her low back without 
 
            radiation into the legs.  Both sitting and supine straight 
 
            leg raising were negative.  Dr. Turner then released 
 
            claimant to return to work ten days later working 20 hours 
 
            per week for two weeks and then increasing to full duty.  On 
 
            January 20, 1990, Dr. Turner, per claimant's request, 
 
            indicated claimant should work a 20-hour week for six months 
 
            for general conditioning.  On June 20, 1990, Dr. Turner 
 
            released claimant to return to work [apparently full duty] 
 
            as of July 2, 1990 and released claimant from his care on a 
 
            prn basis.  Claimant was paid temporary total disability 
 
            benefits to her return to work on October 25, 1989.  She 
 
            received no permanent partial disability benefits subsequent 
 
            to the May 25, 1989 surgery.
 
            
 
                 On January 9, 1993, claimant was working as a customer 
 
            checker at K Mart.  Claimant worked 24 hours per week and 
 
            earned $6.95 per hour.  It is expressly found that claimant 
 
            then had a gross weekly wage of $166.80, resulting in a 
 
            weekly rate of $122.54.  
 
            
 
                 On or about January 9, 1993, claimant was pushing a 
 
            line of shopping carts.  She also had been doing a lot of 
 
            twisting and repetitive activities related to the increase 
 
            in store activity during the holiday season.  She reported 
 
            having unbearable pain and spasms.  K Mart personnel advised 
 
            claimant to see Yang Ahn, M.D.  He advised claimant to see 
 
            Dr. Turner whom claimant saw on January 18, 1993.  She then 
 
            had positive straight leg raising on the left at 70 degrees 
 
            and negative straight leg raising on the right at 90 
 
            degrees.  Dr. Turner performed an epidural steroid injection 
 
            on January 19, 1993.  Dr. Turner released claimant to return 
 
            to work on May 17, 1993; she returned to work on May 19, 
 
            1993.  He stated she should work four hours per day and not 
 
            lift greater than 25 to 30 pounds.  He further stated that 
 
            her permanent partial impairment was unchanged, apparently 
 
            from the likely 5 percent impairment previously opined.
 
            
 
                 It is expressly found that claimant's need for surgery 
 
            in May 1989 and her need for an epidural steroid injection 
 
            in January 1993 related to claimant's work activities at K 
 
            Mart.  
 

 
            
 
            
 
            
 
            
 
                 Claimant received no temporary total or healing period 
 
            benefits and received no payment for medical mileage 
 
            incurred subsequent to the January 9, 1993 incident.  
 
            Claimant had traveled 217 miles for treatment incurred after 
 
            the January 9, 1993 incident.  She has medical treatment 
 
            costs as follows:
 
            
 
                 Dr. Herring                     $  364.64
 
                 IMC                                427.00
 
                 Medicenter West                     29.00
 
                 St. Luke's Hospital                529.65
 
                 Work Injury Rehabilitation Ctr.  4,177.35
 
                                                $ 5,527.64
 
            
 
                 It is expressly found that claimant was an employee of 
 
            K Mart on March 11, 1988, August 11, 1988 and January 9, 
 
            1988.  
 
            
 
                 It is expressly found that claimant did receive 
 
            injuries that arose out of and in the course of her 
 
            employment on March 11, 1988, August 11, 1988 and January 9, 
 
            1993.
 
            
 
                 It is expressly found that the medical reports and 
 
            opinions of Dr. Turner as well as claimant's consistent 
 
            medical history are sufficient to establish that claimant's 
 
            need for a partial hemilaminectomy on May 25, 1989 relates 
 
            back to her work injuries with K Mart sustained on March 11, 
 
            1988 and August 11, 1988.  
 
            
 
                 It is expressly found that claimant has a 5 percent 
 
            permanent partial impairment of the body as a whole as a 
 
            result of her work injuries of March 11, 1988 and August 11, 
 
            1988 and her subsequent need for a partial hemilaminectomy.  
 
            It is expressly found that claimant sustained a material 
 
            temporary aggravation of her preexisting work related 
 
            condition on or about January 9, 1993, which temporary 
 
            aggravation produced a need for medical care including an 
 
            epidural steroid injection and work injury rehabilitation 
 
            the costs of which are  defendants' liability.  It is 
 
            expressly found that  defendants' are liable for costs 
 
            incurred for medical mileage subsequent to the January 9, 
 
            1993 injury.  
 
            
 
                 It is expressly found that claimant has sustained no 
 
            additional permanent partial impairment as a result of her 
 
            temporary aggravation of her preexisting work-related 
 
            condition on or about January 9, 1993.  It is also expressly 
 
            found that claimant did sustain a permanent disability which 
 
            has affected her earnings capacity as a result of her March 
 
            11, 1988 and August 11, 1988 dates of injury.  
 
            
 
                 Claimant remains employed with K Mart.  The employer 
 
            appears to have accommodated claimant's restrictions by 
 
            permitting her to work in check-out only.  Claimant remains 
 
            on an approximately 20 to 24 hour per week schedule.  This 
 
            is not inconsistent with claimant's schedule with K Mart 
 
            prior to any of her injuries, however.  Claimant apparently 
 
            is not able to return to work either as a merchandise 
 

 
            
 
             
 
            
 
            
 
            
 
            
 
            stocker or a night crew member.  These jobs apparently 
 
            involve lifting, twisting and turning which would be 
 
            detrimental to her low back.  Claimant's inability to return 
 
            to those jobs within the employer's work force demonstrates 
 
            that claimant has lost some actual job market access on 
 
            account of her work injury.  Hence, even though the employer 
 
            has accommodated claimant and claimant is now earning $7.35 
 
            per hour, an amount greater than her earnings on any of her 
 
            work injuries, claimant has suffered an actual industrial 
 
            loss of earnings capacity on account of her permanent 
 
            partial impairment related to her March 11, 1988 and August 
 
            11, 1988 work injuries.  It is expressly found that that 
 
            loss of actual earnings capacity is in the amount of 15 
 
            percent.  
 
            
 
                 Claimant's need for surgery and her subsequent 
 
            permanent disability were not manifested until after her 
 
            August 11, 1988 injury.  Permanent partial disability 
 
            benefits due claimant should be paid at the weekly rate for 
 
            that date of injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We consider the employee-employer question.  Section 
 
            85.61 paragraph 11 provide in relevant part:
 
            
 
                    11. "Worker" or "employee" means a person who 
 
                 has entered into the employment of, or works under 
 
                 contract of service, express or implied, or 
 
                 apprenticeship, for an employer; ...
 
            
 
                 Claimant has established that an employer-employee 
 
            relationship existed between claimant and K Mart Corporation 
 
            on March 11, 1988, August 11, 1988 and January 9, 1993.  
 
            
 
                 We next consider the arising out of and in the course 
 
            of issues.
 
            
 
                 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.  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 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 circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant has established injuries arising out of and in 
 
            the course of her employment with K Mart Corporation on 
 
            March 11, 1988, August 11, 1988 and January 9, 1993.
 
            
 
                 We consider the causation issues.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability 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 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (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 weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Claimant has established that her injuries of March 11, 
 
            1988 and August 11, 1988 produced a need for hemilaminectomy 
 
            and further produced a permanent partial impairment of 5 
 
            percent of the body as a whole as well as a permanent 
 
            partial disability to claimant.
 
            
 
                 Claimant has established that her injury of January 9, 
 
            1993 produced a material aggravation of her preexisting 
 
            work-related conditions such that claimant needed a course 
 
            of medical treatment and had a period of temporary total 
 
            disability related to that injury.
 
            
 
                 Claimant has not established that claimant has 
 
            sustained any additional permanent disability on account of 
 
            her January 9, 1993 work injury.
 
            
 
                 We consider the industrial disability question.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 

 
            
 
            
 
            
 
            
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant has established a permanent partial disability 
 
            to the body as a whole of 15 percent.  
 
            
 
                 We consider claimant's entitlement to healing period 
 
            benefits.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Claimant has established that she is entitled to 
 
            healing period benefits for those dates she was actually off 
 
            work on account of her January 9, 1993 material aggravation 
 
            of her preexisting work-related condition from January 9, 
 
            1993 to her return to work with K Mart on May 19, 1993.  
 
            
 
                 We next consider the question of claimant's entitlement 
 
            to payment of medical costs incurred and medical mileage 
 
            costs incurred relative to her January 9, 1993 material 
 
            aggravation of her work-related condition.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Claimant has established entitlement to medical costs 
 

 
            
 
            
 
            
 
            
 
            incurred as a result of her January 9, 1993 incident as set 
 
            forth in the above Findings of Fact and totaling $5,527.64.
 
            
 
                 Claimant has established entitlement to payment for 
 
            medical mileage of 217 at the reimbursement rate of 21 cents 
 
            per mile, totalling $45.57.
 
            
 
                 We consider the rate questions.  
 
            
 
                 Section 85.36 provides the following as regards basis 
 
            of rate computation for an hourly worker:  
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 Claimant has established weekly rates of $92.03; 
 
            $125.18; and $122.54 relative to her March 11, 1988, August 
 
            11, 1988, and January 9, 1993 work injuries, respectively.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for seventy-five (75) weeks at the rate of one 
 
            hundred twenty-five and 18/100 dollars ($125.18) with those 
 
            payments to commence on the date claimant actually returned 
 
            to work subsequent to her May 25, 1989 partial 
 
            hemilaminectomy.
 
            
 
                  Defendants pay claimant healing period benefits at the 
 
            rate of one hundred twenty-two and 54/100 dollars ($122.54) 
 
            for that period from January 9, 1993 to May 19, 1993, where 
 
            claimant was actually off work on account of her material 
 
            aggravation of her work-related condition on or about 
 
            January 9, 1993.
 
            
 
                  Defendants pay accrued amounts in a lump sum.
 
            
 
                  Defendants pay interest pursuant to section 85.30.
 
            
 
                 Defendants pay claimant mileage expenses in the amount 
 
            of forty-five and 57/100 dollars ($45.57) and medical 
 
            expenses in the amount of five thousand five hundred 
 
            twenty-seven and 64/100 dollars ($5,527.64) all as set forth 
 
            in the above Findings of Fact.
 
            
 
                  Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as the agency 
 
            orders.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 

 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Matthew J. Petrzelka
 
            Attorney at Law
 
            115 3rd Street, SE, Suite 1200
 
            Cedar Rapids, IA  52401
 
            
 
            K Mart
 
            2727 16th ave. SW
 
            Cedar Rapids, IA  52404
 
            
 
            K Mart
 
            3100 W. Big Beaver Rd
 
            Troy, MI  48084
 
            
 
 
            
 
            
 
            
 
            
 
                                    2900; 1108.50; 1801; 1803; 1806
 
                                    Filed August 29, 1994
 
                                    Helenjean M. Walleser
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PATRICIA PARSONS,   
 
                      
 
                 Claimant, 
 
                                           File Nos. 1036183, 1036184
 
            vs.                                      and  878792
 
                      
 
            K MART,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            K MART SELF INS. PROGRAM,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            2900; 1108.50; 1801; 1803; 1806
 
            
 
                 Defendants did not answer or otherwise appear despite 
 
            claimant's having properly served them.  All claimant's 
 
            original notices and petitions were filed on March 11, 1993.  
 
            Claimant testified she had received temporary total 
 
            disability benefits as a result of March 11, 1988 and August 
 
            11, 1988 injury.  First reports and claim activity reports 
 
            were only in the file relative to the March 11, 1988 injury.  
 
            That Form 2A would suggest that claimant's last payments on 
 
            account of that injury occurred more than three years prior 
 
            to March 11, 1983.  Despite that, the deputy did not raise 
 
            the issue of the statute of limitations on her own motion.  
 
            Claimant found to have established permanent partial 
 
            disability of 15 percent where claimant underwent a partial 
 
            hemilaminectomy and excision of extruded disc material at 
 
            L4/L5 on May 25, 1989.  Claimant's condition manifested 
 
            itself subsequent to the August 11, 1988 established work 
 
            injury.  The rate of compensation for permanent partial 
 
            disability was found to be that of that date and not that of 
 
            the March 11, 1988 established work injury date.  Claimant 
 
            found to have established a material temporary aggravation 
 
            of her preexisting work-related condition on January 9, 
 
            1993, for which she required time off work and medical 
 
            treatment and rehabilitative services.  Claimant found 
 
            entitled to temporary total disability benefits and payment 
 
            of medical costs and medical mileage sustained as a result 
 
            of that temporary aggravation.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MYRTLE CAREY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 878836
 
            CEDAR FALLS LUTHERAN HOME,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Myrtle 
 
            Carey against Cedar Falls Lutheran Home, her former 
 
            employer, and its insurance carrier, Liberty Mutual 
 
            Insurance Company, based upon an injury that occurred on 
 
            March 11, 1988.  Claimant seeks compensation for healing 
 
            period, permanent partial or permanent total disability, and 
 
            payment of medical expenses.
 
            
 
                 The primary issues to be determined are whether the 
 
            injury is a proximate cause of any temporary or permanent 
 
            disability; determination of the healing period claim; 
 
            determination of the claim for permanent disability; and, 
 
            determination of the medical expense entitlement.  
 
            Defendants assert that the services provided by James E. 
 
            Crouse, M.D., were unauthorized.
 
            
 
                 The case was heard at Waterloo, Iowa on July 25, 1990.  
 
            The evidence consists of testimony from Myrtle Carey, 
 
            Charlotte Neilsen, joint exhibits A through E, and 
 
            claimant's exhibits F-1 and F-2.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Myrtle Carey is a 30-year-old married woman who 
 
            graduated from high school in 1978, completed a two-week 
 
            nurse's aide course in 1986 and has no other formal 
 
            education.  Her work history consists of work as a sales 
 
            clerk, cashier in retail stores, laundry in a nursing home 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            and nurse's aide work in a nursing home.
 
            
 
                 On March 11, 1988, Myrtle was working at the Cedar 
 
            Falls Lutheran Home as a nurse's aide earning $4.65 per 
 
            hour.  While helping to lift a resident, she injured her 
 
            back.  Myrtle reported the incident to her supervisor.  The 
 
            day the incident occurred was a Friday.  She was off work 
 
            over the weekend and rested.  On the following Monday, she 
 
            reported to work and was sent to Sartori Memorial Hospital 
 
            where the emergency room physician suspected that she had a 
 
            herniated lumbar disc and referred her to orthopaedic 
 
            surgeon Arnold E. Delbridge, M.D. (exhibit B-4, page 1).
 
            
 
                 Dr. Delbridge employed conservative treatment, but 
 
            claimant did not improve.  Diagnostic tests showed a 
 
            protruded lumbosacral disc on the right side of her spine 
 
            (exhibit B-1, page 2; exhibit B-4, pages 9, 20 and 21).  On 
 
            April 25, 1988, claimant underwent automated percutaneous 
 
            discectomy of the L5-S1 disc, which surgery was performed by 
 
            Dr. Delbridge (exhibit B-1, page 2; exhibit B-4, page 14).
 
            
 
                 Following the surgery, claimant showed some 
 
            improvement.  The records show that she fell and injured her 
 
            leg in late May or early June.  On July 29, 1988, Dr. 
 
            Delbridge released claimant to return to work with a 
 
            40-pound lifting restriction.  Claimant worked only one 
 
            shift and then returned to Dr. Delbridge expressing 
 
            complaints of increased symptoms.  Claimant attributed the 
 
            problem to being understaffed.  Charlotte Neilsen, the 
 
            assistant administrator for the employer, testified at 
 
            hearing that there was no understaffing and that the company 
 
            records failed to show claimant having made any complaint.  
 
            Dr. Delbridge placed claimant into a two-week work hardening 
 
            program (exhibit B-1, pages 3 and 7).
 
            
 
                 On August 12, 1988, Dr. Delbridge again indicated that 
 
            claimant could return to her previous job, but that she 
 
            would need a gradual period of approximately four weeks 
 
            where she had a lifting restriction and would not be 
 
            required to lift a patient without assistance from another 
 
            person.  On August 23, 1988, he again indicated that 
 
            claimant could return to work if the employer would protect 
 
            her.  He rated her as having an eight percent impairment of 
 
            the body as a whole (exhibit B-1, page 4).  Due to a lack of 
 
            communication between the doctor and the employer, the 
 
            actual release to return to work was not issued until 
 
            September 12, 1988 (exhibit B-1, page 10).  It is 
 
            specifically found that it was medically indicated on August 
 
            23, 1988 that further significant improvement from 
 
            claimant's injury was not anticipated.
 
            
 
                 Claimant did not return to work with the employer and 
 
            did not seek any other positions with the employer.  She was 
 
            scheduled to work on September 16 and 17, 1988.  On the 
 
            16th, she phoned in and reported having car trouble.  She 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            did not phone in on the 17th.  The employer treated it as a 
 
            voluntary resignation.
 
            
 
                 The record of claimant's subsequent employment 
 
            activities is somewhat confused.  It appears as though in 
 
            approximately August 1988, she accepted a job at the Monfort 
 
            Pork Plant in Marshalltown, Iowa.  She worked there for 
 
            approximately four months and was earning $6.80 per hour at 
 
            the time she left.  She testified that she left due to 
 
            having problems with her back as a result of the standing 
 
            and twisting which she performed at that job.  She worked 
 
            briefly at a Hardee's Restaurant in Waterloo in 
 
            approximately November 1988.  In April 1990, she worked 
 
            approximately two days at Jerome's Bakery in Waterloo for 
 
            which she was paid $4.00 per hour.  She stated that she had 
 
            to lift 50 pounds in order to hold that job.  Also in April 
 
            of 1990, she worked one day and two hours of the next day at 
 
            Cedar Falls Health Care Center as a nurse's aide.  She left 
 
            due to pain from handling patients.  Claimant has applied 
 
            for a number of positions as shown in exhibit E, pages 15 
 
            and 18.  She felt that she would have been unable to perform 
 
            several of those jobs, however (exhibit E, pages 19-22).
 
            
 
                 Claimant enrolled in a medical secretary course at the 
 
            Hawkeye Area Community College, but the class was full and 
 
            she was unable to attend (exhibit E, pages 22 and 23).
 
            
 
                 Claimant feels that her physical restrictions, as 
 
            provided by Dr. Crouse, are that she avoid lifting more than 
 
            25 pounds and that she limit activities which require 
 
            bending and stooping (exhibit E, page 29).
 
            
 
                 In early 1989, Dr. Delbridge diagnosed claimant as 
 
            having recurrence of her protruding L5-S1 disc.  He reported 
 
            that further surgery was indicated (exhibit B-1, pages 5 and 
 
            11).
 
            
 
                 Claimant sought and received an independent medical 
 
            evaluation from Dr. Crouse (exhibit F-1).  Dr. Crouse agreed 
 
            that the diagnostic tests which had been conducted showed a 
 
            recurrent herniated disc, but he also stated that claimant's 
 
            symptoms do not correspond to the abnormalities shown in 
 
            that test.  He did not recommend any further surgery.  He 
 
            did, however, opine that claimant had a 10 percent permanent 
 
            impairment of the body as a whole due to the March 7, 1988 
 
            injury (exhibit B-2, page 2).
 
            
 
                 Claimant has also been evaluated by M. Eyad Dughly, 
 
            M.D., a neurologist, who could make no definite finding of a 
 
            radiculopathy affecting the claimant.  He found no 
 
            significant objective neurological abnormalities, except for 
 
            her complaints of tremendous pain (exhibit B-3, pages 1-3).
 
            
 
                 Claimant has been evaluated by vocational consultant 
 
            Lori Hackett.  Hackett initially felt that claimant was 
 
            highly motivated to find work, but as time passed, she began 
 
            to note that claimant was not cooperating with the job 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            placement efforts (exhibit D).  A review of the reports 
 
            issued by Hackett shows that it is clearly Hackett's opinion 
 
            that claimant could probably find a job if she made a 
 
            diligent search.  The reports also indicate that the job 
 
            would likely pay somewhere in the range of $3.35 per hour to 
 
            $5.50 per hour (exhibit D, pages 9 and 10).
 
            
 
                 Claimant seeks to recover a number of medical expenses 
 
            as summarized in exhibit C.  Upon reviewing the bills and 
 
            comparing them with the other records of medical treatment, 
 
            it is found that the following charges and expenses were 
 
            incurred for the purpose of treating the back injury which 
 
            is the subject of this litigation.  No reimbursement is 
 
            awarded for those items where there are no supporting 
 
            documents showing what actually occurred.  The claimant's 
 
            own testimony is insufficient to establish a causal 
 
            connection.
 
            
 
                 Covenant Medical Center  1-11-89         $  969.00
 
                 Evansdale Chiropractic Clinic  4-2-88       120.00
 
                 Radiological Associates, P.C.  4-25-88       23.90
 
                 Radiological Associates, P.C.  1-11-89      200.65
 
                 James E. Crouse, M.D.  4-6-89                68.00
 
                 M. Eyad Dughly, M.D.                        180.00
 
                 Total                                    $1,561.55
 
            
 
                 Medical record and report fees are not an expense of 
 
            treatment which can be recovered under Iowa Code section 
 
            85.27.  With regard to Dr. Crouse, exhibits F-1 and F-2 do 
 
            not indicate that the employer had authorized Dr. Crouse to 
 
            do anything other than a second opinion evaluation.  For 
 
            that reason, the later charge from October 17, 1989 is 
 
            disallowed.  The failure of the defendants to object after 
 
            the expense had been incurred is not probative.  At no point 
 
            in those letters is it suggested that Dr. Crouse become the 
 
            authorized treating physician.  There is nothing in the 
 
            record to show that any services provided by Dr. Dughly 
 
            subsequent to May 5, 1989 were connected with the back 
 
            injury.
 
            
 
                 The evidence in this case presents Myrtle Carey as a 
 
            person with complaints which greatly exceed those normally 
 
            expressed by individuals with a similar physical condition.  
 
            Her complaints exceed the ratings of physical impairment and 
 
            the other assessments made by the physicians.  Claimant had 
 
            worked in a number of different establishments prior to 
 
            commencing employment with Cedar Falls Lutheran Home.  She 
 
            seems to be of at least average intelligence.  She does not 
 
            seem to be motivated to resume employment.  Her list of job 
 
            seeking inquiries is not persuasive in view of the long 
 
            period of time she has been without employment.  It is 
 
            specifically found that her loss of earning capacity is not 
 
            accurately reflected by her complete lack of employment.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            She clearly is not totally disabled as a result of this 
 
            injury.  On the other hand, she does have a documented 
 
            medical impairment and a basis for medically imposed 
 
            activity restrictions which would render her incapable of 
 
            performing the normal work of a nurse's aide, the field 
 
            which has been her primary occupation for the last several 
 
            years of her work life.  Myrtle has lost access to that 
 
            portion of the job market and to other portions of the job 
 
            market which require substantial lifting, bending and 
 
            twisting types of activities.  Her work history has been in 
 
            jobs which have paid at or slightly above the minimum wage 
 
            level for the most part.  It is expected that the jobs which 
 
            she is still capable of obtaining and performing would 
 
            provide a comparable rate of pay.  Her loss of access to the 
 
            job market is the primary factor responsible for her reduced 
 
            earning capacity.  When all the material factors are 
 
            considered, it is determined that Myrtle Carey has 
 
            experienced a 30 percent reduction of her earning capacity 
 
            due to the March 11, 1988 injury.
 
            
 
                                conclusions of law
 
            
 
                 The injury which Myrtle Carey sustained while handling 
 
            a patient on March 11, 1988 is a proximate cause of the 
 
            disability which has and continues to afflict her in 
 
            connection with her low back.
 
            
 
                 Myrtle Carey is entitled to recover healing period 
 
            compensation running from March 11, 1988 through August 23, 
 
            1988 in accordance with Iowa Code section 85.34(1).  When 
 
            Dr. Delbridge assigned his impairment rating, that act 
 
            indicated that he did not expect further significant 
 
            improvement.  The healing period is 23 5/7 weeks.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 When all the material factors of industrial disability 
 
            are considered, it is determined that claimant has a 30 
 
            percent permanent partial disability which, under the 
 
            provisions of Iowa Code section 85.34(2)(u), entitles her to 
 
            receive 150 weeks of compensation.
 
            
 
                 Claimant is entitled to recover, under the provisions 
 
            of Iowa Code section 85.27, the following medical expenses:
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Covenant Medical Center  1-11-89         $  969.00
 
                 Evansdale Chiropractic Clinic  4-2-88       120.00
 
                 Radiological Associates, P.C.  4-25-88       23.90
 
                 Radiological Associates, P.C.  1-11-89      200.65
 
                 James E. Crouse, M.D.  4-6-89                68.00
 
                 M. Eyad Dughly, M.D.                        180.00
 
                 Total                                    $1,561.55
 
            
 
            The employer is not liable for the October 17, 1989 charges 
 
            with Dr. Crouse as treatment by Dr. Crouse was not 
 
            authorized.  The other bills which claimant sought to 
 
            recover have not been shown, by a preponderance of the 
 
            evidence, to have been incurred for treatment of conditions 
 
            resulting from the March 11, 1988 injury.  The testimony of 
 
            the claimant, in the absence of any medical corroboration 
 
            from either the bills themselves or medical records, is 
 
            insufficient to establish employer liability.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Myrtle 
 
            Carey twenty-three and five-sevenths (23 5/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            one hundred twenty-one and 06/100 dollars ($121.06) per week 
 
            payable commencing March 11, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Myrtle Carey 
 
            one hundred fifty (150) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of one hundred 
 
            twenty-one and 06/100 dollars ($121.06) per week payable 
 
            commencing August 24, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the following 
 
            medical expenses:
 
            
 
                 Covenant Medical Center  1-11-89         $  969.00
 
                 Evansdale Chiropractic Clinic  4-2-88       120.00
 
                 Radiological Associates, P.C.  4-25-88       23.90
 
                 Radiological Associates, P.C.  1-11-89      200.65
 
                 James E. Crouse, M.D.  4-6-89                68.00
 
                 M. Eyad Dughly, M.D.                        180.00
 
                 Total                                    $1,561.55
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            for all amounts of weekly compensation previously paid and 
 
            pay all past due amounts in a lump sum together with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John S. Pieters
 
            Attorney at Law
 
            2315 Falls Avenue, Suite 3
 
            Waterloo, Iowa  50701
 
            
 
            Mr. Jeffrey J. Greenwood
 
            Attorney at Law
 
            528 West Fourth Street
 
            P.O. Box 1200
 
            Waterloo, Iowa  50704
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108; 5-1802; 5-1803
 
                           2902
 
                           Filed December 4, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MYRTLE CAREY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 878836
 
            CEDAR FALLS LUTHERAN HOME,    :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            2902
 
            Testimony from claimant, without corroboration from medical 
 
            records or other sources, held insufficient to establish 
 
            employer liability for medical treatment.
 
            
 
            5-1108; 5-1802; 5-1803
 
            Claimant, a 30-year-old nurse's aide who suffered a back 
 
            injury which rendered her incapable of resuming employment 
 
            as a nurse's aide, awarded 30 percent permanent partial 
 
            disability.  She had only a high school education and lost 
 
            access to a large portion of the employment market which had 
 
            previously been available to her.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY J. HULSEBUS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 878840
 
         DUBUQUE PACKING CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Terry Hulsebus, 
 
         claimant, against Dubuque Packing Company, employer, and Sentry 
 
         Insurance Company, insurance carrier, defendants.  The case was 
 
         heard by the undersigned on October 12, 1989, in Sioux City, 
 
         Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Connie Hulsebus wife of 
 
         claimant, and Cecilia Blaskovich, vocational rehabilitation 
 
         specialist. Finally the record consists of joint exhibits  A-S 
 
         and defendants' exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted on 
 
         October 12, 1989, the issues presented by the parties are:
 
         
 
              1. Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits;
 
         
 
              2. Whether claimant is entitled to medical benefits under 
 
         section 85.27; and,
 
         
 
              3. Whether defendants are entitled to a credit under section 
 
         85.38(2) for previous payment of medical/hospitalization 
 
         expenses.
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury.
 
         
 
              2. That claimant sustained an injury on March 1, 1988, which 
 
         arose out of and in the course of employment with employer;
 
         
 
              3. That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole.
 
         
 
              4. The commencement date for permanent partial disability, 
 
         in the event such benefits are awarded, is stipulated to be the 
 
         9th day of October, 1989;
 
         
 
              5. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $228.93 per week;
 
         
 
              6. Defendants paid claimant .429 weeks of compensation at 
 
         the rate of $228.93 per week prior to hearing; and,
 
         
 
              7. The parties have stipulated to the taxation of costs.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 33 years old.  He has a bachelors of science 
 
         degree in wildlife ecology and conservation, although claimant 
 
         has worked sparingly in that field since his 1981 graduation.  At 
 
         the time of the hearing, claimant had been employed at Anderson 
 
         Fire Arms & Supplies d/b/a G.R.A. Wholesale for approximately six 
 
         months.  Claimant had been working at Anderson Fire Arms as a 
 
         counter sales person where he was paid $166.00 per week salary 
 
         and a five percent commission on retail sales made by him.
 
         
 
              Claimant testified he began working for defendant-employer 
 
         on October 6, 1982 and he was hired as a line worker.  During the 
 
         course of his employment, claimant stated he held various jobs, 
 
         including knife work, processing work, driving a fork lift and 
 
         performing quality control tasks.
 
         
 
              Claimant described a non-work related auto accident he was 
 
         involved in on July 8, 1987.  Claimant reported an injury to his 
 
         neck.
 
         
 
              Claimant testified that on March 1, 1988, he was hit from 
 
         behind by a fork lift truck.  As a result, claimant stated he was 
 
         crushed between a basket of canned hams and the fork lift.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 3
 
         
 
         
 
         Claimant further described the sequence of events which 
 
         transpired on the day in question.  He stated he fell down after 
 
         the impact and several co-employees assisted him to the nurse's 
 
         office.  Claimant testified he was taken to the company 
 
         physician, B. W. Treu, M.D.
 
         
 
              Medical records admitted at the hearing establish that 
 
         claimant was referred to an orthopedic specialist, Mary-Franklin 
 
         G. Paulus, M.D., by Dr. Treu.  Dr. Paulus referred claimant to 
 
         physical therapy at the Crawford County Hospital where he was 
 
         treated by Cynthia Stessman, P.T., from March 7, 1988 to October 
 
         19, 1988.
 
         
 
              Medical records admitted at the hearing, also reveal 
 
         claimant was treated by Michael T. O'Neil, M.D., pursuant to a 
 
         request from defendants' attorney.  Dr. O'Neil testified by 
 
         deposition that he first examined claimant on June 27, 1988.
 
         
 
              Dr. O'Neil opined in his deposition:
 
         
 
                   Q.   Okay. Going back to April of '89, have you
 
              given us pretty much the results of your clinical exam-
 
              ination?
 
         
 
                   A.    No, I haven't.
 
         
 
                   Q.    Would you do that, please?
 
         
 
                   A.    Upon examination in April of '89, the lum-
 
              bosacral spine appeared to be normal visually.  The
 
              pelvis was level.  He walked well on his toes and
 
              heels.  He complained of tenderness to pressure or fist
 
              percussion or palpation in the low back area in gen-
 
              eral, but there was no muscle spasm.
 
         
 
                   Range of motion of the lumbosacral spine was
 
              approximately 50 percent of normal.  His straight leg
 
              raising tests were negative at 90 degrees bilaterally,
 
              and a neurological examination of the lower extremity
 
              was completely normal with no evidence of motor weak-
 
              ness, reflex asymmetry or sensory deficits.
 
         
 
                   Q.    What was your diagnosis then?
 
         
 
                   A.    Well, at that time I thought that Mr. Hulsebus
 
              had sustained a ligamentous injury of the lumbar spine
 
              and felt that his symptoms were soft tissue in nature.
 
              I did not feel that a CT scan or a myelogram or MRT
 
              would be of any benefit in further diagnosing his prob-
 
              lem in view of the fact that he had a normal neurologi-
 
              cal examination and I presumed that he had normal X
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 4
 
         
 
         
 
              rays taken by Dr. Paulus who examined him for Dr. Bodo
 
              Treu. I recommended continued therapy or conservative
 
              treatment and asked him to return to the office in four
 
              to six weeks for reevaluation.
 
         
 
                   Q.    Okay. Have you seen the patient since July
 
              18th, 1989?
 
         
 
                   A.    No, I have not.
 
         
 
                   Q.    Based upon your clinical examination and the
 
              history given to you and the records you've looked at,
 
              do you have an opinion within reasonable degree of med-
 
              ical certainty as to whether or not Mr. Hulsebus has
 
              any permanent partial impairment in his low back?
 
         
 
                   A.    I do.
 
         
 
                   Q.    What is that opinion?
 
         
 
                   A.    At this time I don't feel that Mr. Hulsebus has
 
              any permanent partial impairment of the lumbar spine.
 
         
 
                   Q.    And I take it that's the same with his neck?
 
         
 
                   A.    Well, he told me his neck symptoms have com-
 
              pletely resolved with treatment under the care of Dr.
 
              Crabb and perhaps Dr. Bodo Treu, but he -- he had no
 
              complaints referable to his neck when I saw him.
 
         
 
         (Exhibit F, pages 6-11)
 
         
 
              Under Cross-examination, Dr. O'Neil opined:
 
         
 
              .:.what is your opinion, Doctor, as to when he reached
 
              his medical -- his maximum recovery?
 
         
 
                   A.    I don't think he has.
 
         
 
                   Q.    You don't
 
         
 
                   A.    I think he's still going to improve.
 
         
 
                   Q.    Okay.  So as far as you're concerned, then, when
 
               do you think that -- can you give us an opinion based
 
               upon a reasonable degree of medical certainty as to
 
               when you think he will reach his maximum medical
 
               improvement?
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 5
 
         
 
         
 
                   A.    I think within the next six to nine months.
 
         
 
                   Q.    Would it be better for him to come back to you
 
              for further treatment, Doctor, or is there anything
 
              more that you can do for him?
 
         
 
                   A.    I would like to see him again and see what
 
              progress he's made since July 18th, and I asked him to
 
              come back in 12 weeks, eight to 12 weeks.  So August,
 
              September -- anytime in the next four weeks or so would
 
              be appropriate.
 
         
 
                   Q.    Okay.  At the present time is Terry suffering
 
              any permanent partial impairment of the lumbar spine?
 
         
 
                   A.    He -- at the present time he's  experiencing pain
 
              in his lumbar spine.  And he has a temporary impair-
 
              ment, but I don't think he has a permanent impairment
 
              at this time.
 
         
 
                   Q.    I'm sorry, Doctor, I used the wrong word.
 
         
 
                   A.    Temporary partial impairment.
 
         
 
                   Q.   He has a temporary partial impairment which you
 
              believe should go away in, what did you say, six to
 
              nine months?
 
         
 
                   A.   Six to nine months.
 
         
 
                   ...
 
         
 
                   Q.   Okay. Could you give me a figure, Doctor, as to
 
              the temporary partial impairment of the lumbar spine or
 
              temporary partial impairment that Terry Hulsebus has at
 
              the present tine, like functional impairment?
 
         
 
                   A.   I can.
 
         
 
                   Q.   Could you do that, please?
 
         
 
                   A.   I think he has a 5 percent permanent -- I'm
 
              sorry -- 5 percent temporary partial impairment of the
 
              lumbosacral spine.
 
         
 
              One month later, Dr. O'Neil again testified by deposition.
 
         At that time, he opined:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                   A.   I believe that Mr. Hulsebus has experienced an
 
              injury to his back, with resulting chronic ligamentous
 
              strain of the lumbar spine.
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 6
 
         
 
         
 
                   Q.   Do you have an opinion within a reasonable de-
 
               gree of medical certainty as to whether or not the
 
              .patient has any permanent partial impairment in his low
 
               back?
 
         
 
                   A.   I do.
 
         
 
                   Q.   What is that opinion?
 
         
 
                   A.   I believe that Mr. Hulsebus has sustained a
 
                2 1/2 percent permanent impairment to the body as a
 
                whole as a result of his back injury.
 
         
 
                   Q.   Is that reading based upon subjective data sup-
 
                plied to you by the patient?
 
         
 
                   A.   The reading or judgment is based on my examina-
 
               tion and upon his not having any objective physical
 
               findings, despite his persistent pain and occasional
 
               limitation of motion of the lumbar spine, that's cor-
 
               rect.
 
         
 
                   Q.   So really there are no particular objective
 
               findings.  Is that a fair way of putting it?
 
         
 
                   A.   That's correct.
 
         
 
                   Q.   Is it your opinion now, Doctor, that Terry has
 
               reached his maximum recovery as far as medical improve-
 
               ment is concerned?
 
         
 
                   A.   I believe he has.
 
         
 
              Dr. O'Neil also wrote a medical report dated October 6, 
 
         1989.  In the report the physician opined:
 
         
 
              Mr. Hulsebus returned to our office on October 5, 1989,
 
              for reevaluation.  He reports he has not changed appre-
 
              ciably since I saw him in July.  He still has a con-
 
              stant dull aching low back pain which is minimal at
 
              times but quite severe at other times.  He reports
 
              increased difficulty with stooping, bending, twisting
 
              and lifting.  He continues to deny any radicular pains
 
              or paresthesias.  His back pain improves with rest and
 
              medication.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Examination today is also unchanged with fairly.normal
 
              range of motion with discomfort with maximum flexion
 
              with the fingertips ten inches from the floor.  There
 
              is no muscle spasm.  He does have fist percussion and
 
              palpation tenderness across the midline low back area
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 7
 
         
 
         
 
              and both paravertebral columns, but no buttock  tender-
 
              ness.  Straight leg raising tests are negative.
 
         
 
              I believe that this man has reached maximum medical
 
              improvement at this time.  I would anticipate that he
 
              will continue to experience intermittent low back pain
 
              with aggravation with stooping, lifting or bending.  I
 
              do not feel that any further treatment is indicated at
 
              the present time.
 
         
 
              Claimant testified he was laid off from his position at 
 
         defendant-employer's establishment on April 4, 1988.  He  
 
         acknowledged he collected some unemployment benefits from April 
 
         of 1988 to October 6, 1988, when he started working for the 
 
         City.of Denison as a radio dispatcher.
 
         
 
              Cecilia Blaskovich testified for defendants.  She is a 
 
         vocational rehabilitation specialist.  Ms. Blaskovich  testified 
 
         she met with claimant on one occasion for 45 minutes.  Ms. 
 
         Blaskovich testified claimant has excellent potential in the 
 
         labor  market, but he is limited by his geographical location.  
 
         She opined claimant could find a job as an environmental 
 
         specialist or a conservationist aide.  Ms. Blaskovich testified 
 
         she did not perform a job search for claimant.  The witness also 
 
         testified she coordinated a functional capacities evaluation for 
 
         claimant.  According to Ms. Blaskovich, she understood claimant 
 
         did not put forth effort and the results of the evaluation were 
 
         only "conditionally valid."
 
         
 
                                  APPLICABLE LAW
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent  impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v, Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              Functional impairment is an element to be considered  in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the  
 
         injured employee's age, education, qualifications, experience and  
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660  (1961).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial  disability.  
 
         This is so as impairment and disability are not synonymous.  
 
         Degree of industrial disability can in fact be much different 
 
         than the degree of impairment because in the first instance 
 
         reference  is
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 8
 
         
 
         
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is  
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to  the 
 
         injury, immediately after the injury, and presently; the situs  
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's qualifi- 
 
         cations intellectually, emotionally and physically; earnings 
 
         prior and subsequent to the injury; age; education; motivation; 
 
         functional impairment as a result of the injury; and  inability 
 
         because of the injury to engage in employment for which the 
 
         employee is fitted.  Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines  which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985);  Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any  
 
         sort of work to a claimant after he suffers his affliction may 
 
         justify an award of disability.  McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may  
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
              "Claimant is not entitled to reimbursement for  medical 
 
         bills unless he shows that he paid them from his own funds."  
 
         See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 9
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has proven by.a preponderance of the evidence that 
 
         he sustained a temporary disability as a result of the injury he 
 
         sustained on March 1, 1988.  The greater weight of the evidence 
 
         does not establish that claimant sustained a permanent 
 
         disability.  Dr. O'Neil, the treating orthopedist, could not find 
 
         any 'objective manifestations of claimant's alleged condition.  
 
         While Dr. O'Neil assessed a two and one-half percent to five 
 
         percent permanent partial impairment rating to claimant, Dr. 
 
         O'Neil readily admitted the figure was based entirely upon 
 
         claimant's subjective complaints.  Additionally, there is the 
 
         report of John M. Dobler, P.T. He opined claimant's performance 
 
         during the functional capacity assessment was only "conditionally 
 
         valid."
 
         
 
              Next, there are the activities performed by claimant.  He 
 
         was quite capable of fishing in Storm Lake while wearing waders.  
 
         Claimant was also capable of shooting prize winning wild turkeys.  
 
         These are physically demanding activities.  It is difficult to 
 
         perceive a person in constant pain capable of wading through the 
 
         waters of Storm Lake.
 
         
 
              Claimant was temporarily totally disabled from April 4, 1988 
 
         to October 6, 1988.  On October 6, 1988, claimant obtained a 
 
         position with the City of Denison.  Prior to that date, claimant 
 
         was medically incapable of returning to employment substantially 
 
         similar to the employment in which the employee was engaged at 
 
         the time of his injury.  From March 7, 1988 to October 19, 1988, 
 
         claimant was under the care of Dr. Treu and Dr. Mary-Franklin G. 
 
         Paulus, as well as receiving intense physical therapy.  Claimant 
 
         was seen approximately 56 times for therapy during this time 
 
         frame.  Claimant was temporarily disabled during this same 
 
         period.  Therefore, claimant is entitled to 26.571 weeks of 
 
         temporary total disability benefits from April 4, 1988 to October 
 
         6, 1988.  The rate is $228.93 per week.
 
         
 
              The final issue to address is whether claimant is entitled 
 
         to medical benefits under section 85.27.  During the hearing, 
 
         claimant testified to the following relative to the payment of 
 
         medical bills:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         Crawford County Memorial Hospital  $1,409.86  total
 
                                             1,166.23  co. ins. paid
 
                                               243.63  claimant paid
 
         
 
         Mary-Franklin G. Paulus            $  582.00  total.bill
 
                                               440.00  ins. paid
 
                                            $  142.00  claimant   paid
 
         
 
         Mary-Franklin G. Paulus               $20.00  claimant   paid
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 10
 
         
 
         
 
         Crawford County Hospital   $ 32.98  total bill
 
                                      26.38  ins. paid
 
                                    $  6.60  claimant paid
 
         
 
         Dr. O'Neil
 
                                    $ 25.00
 
                                          0  paid
 
                                    $ 25.00  due
 
         
 
         Topko Drug                 $153.39
 
         
 
         
 
         Mileage from Denison, Iowa to Omaha, Nebraska to visit Dr. O'Neil
 
         3 round trips at 160 miles = 480 miles x .21 = $100.80
 
         meals = $15.00                Total    $   115.80
 
         
 
         mileage from Denison, Iowa to Omaha, Nebraska for functional
 
         capacity assessment  160 x .21  $33.60
 
         meals                             5.00
 
                              Total      $38.60
 
         
 
              Defendants maintain some of the medical bills are unrelated 
 
         to the work injury of March 1, 1988.  Claimant contends all of 
 
         the medical bills are reasonable and necessary and related to the 
 
         injury at work.
 
         
 
              Cynthia Stessman, P.T., testified that 50 percent of the 
 
         medical bills at Crawford County Memorial Hospital are due to the 
 
         1987 non-work related automobile accident.  Ms. Stessman reported 
 
         each physical therapy session  is billed at $30.00.
 
         
 
              Claimant denied the  therapy sessions were for his 1987 
 
         non-work related accident.  However, even a cursory review of the 
 
         notes made by the  therapist will reveal treatment for the 
 
         cervical area.
 
         
 
              Therefore, it is the determination of the undersigned that 
 
         50 percent of the physical therapy charges are unrelated to 
 
         claimant's work injury.  Fifty percent of the physical therapy 
 
         charges are related to the March 1, 1988 work injury as set out 
 
         in exhibit I.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The balance of the medical charges are reasonable and 
 
         necessary expenses which are causally related to claimant's work 
 
         injury.  Defendants are liable for the balance including $134.40 
 
         in mileage.
 
         
 
              For medical bills related to the work injury, claimant is to 
 
         be reimbursed for bills paid by him personally.  Defendants are 
 
         entitled to a credit.
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 11
 
         
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              Based upon the evidence presented, the testimony given and 
 
         the stipulations of the parties, the following are the findings 
 
         of fact and conclusions of law:
 
         
 
              Finding 1. Claimant sustained an injury to his lower back as 
 
         a result of a work injury on March 1, 1988.
 
         
 
              Finding 2.  Claimant received medical treatment for his 
 
         lower back.
 
         
 
              Finding 3. Claimant was temporarily disabled from April 4, 
 
         1988 to October 6, 1988.
 
         
 
              Finding 4. There were no objective symptoms of claimant's 
 
         low back injury of March 1, 1988.
 
         
 
              Finding 5.  Claimant did not sustain any permanent 
 
         functional impairment as a result of his work injury on March 1, 
 
         1988.
 
         
 
              Conclusion A.  Claimant has proven by a preponderance of the 
 
         evidence that he is entitled to temporary total disability 
 
         benefits from April 4, 1988 to October 6, 1988.
 
         
 
              Conclusion B.  Claimant has incurred certain medical 
 
         expenses which are work related and defendants are liable for 
 
         those causally related expenditures.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are liable to claimant for twenty-six 
 
         point five-seven-one (26.571) weeks of temporary total disability 
 
         benefits at the stipulated rate of two hundred twenty-eight and 
 
         93/100 dollars ($228.93) per week.
 
         
 
              Defendants are liable for certain medical expenditures 
 
         including fifty percent (50%) of the physical therapy 
 
         expenditures listed in exhibit I.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         the statutory interest rate allowable.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid to claimant.
 
         
 
              Costs are assessed to defendants.
 
         
 
              Defendants are to file a claim activity report upon payment 
 
         of all benefits.
 
         
 
         
 
         
 
         HULSEBUS V. DUBUQUE PACKING CO.
 
         Page 12
 
         
 
         
 
              Signed and filed this 30th day of April, 1990.
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David E. Green
 
         Attorney at Law
 
         801 N Adams
 
         Carroll  IA  51401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd, Suite 16
 
         Des Moines  IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1801
 
                                         Filed April 30, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY J. HULSEBUS,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                File No. 878840
 
         DUBUQUE PACKING CO.,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1801
 
         
 
              Claimant sustained only a temporary disability as a result 
 
         of an injury he sustained to his back on March 1, 1988.  Claimant 
 
         had no objtctive findings of any functional impairment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.20; 1108.50; 1803
 
                                               Filed April 2, 1991
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA S. DORFMAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 878903
 
            vs.                           :                   894241
 
                                          :                   911102
 
            JOHN MORRELL & CO.,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50; 1803
 
            
 
                 Claimant sustained strain injury to lumbar spine.  Near 
 
            the time it was expected to heal, but while she was still 
 
            symptomatic, claimant sustained repetitive motion cervical 
 
            strain.
 
            
 
                 Although symptoms exceeded objective signs, various 
 
            physicians determined that range of motion was limited and 
 
            reported finding spasms.  View of chiropractor as to causal 
 
            connection was preferred over board-certified orthopaedic 
 
            surgeon where the latter found no permanent impairment even 
 
            though agreeing that range of motion was diminished.
 
            
 
                 Claimant's total industrial disability was apportioned 
 
            evenly between the cervical and lumbar injuries.  Healing 
 
            period benefits were determined with respect to each.
 
            
 
            1108.20
 
            
 
                 Claimant sustained psychological injury claimed due to 
 
            stress caused by unfriendly relations with replacement 
 
            workers at end of labor dispute in which she participated.  
 
            Claimant had preexisting history of psychological 
 
            disturbance.  The only opinion as to causation was that of a 
 
            licensed social worker, which was held insufficient to meet 
 
            burden of proof on the issue.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANDRA S. DORFMAN,            :
 
                                          :         File Nos. 878903
 
                 Claimant,                :                   894241
 
                                          :                   911102
 
            vs.                           :
 
                                          :          A M E N D E D
 
            JOHN MORRELL & CO.,           :
 
                                          :            O R D E R
 
                 Employer,                :
 
                                          :             N U N C
 
            and                           :
 
                                          :              P R O
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :             T U N C
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            An Arbitration Decision was filed in the above matter on 
 
            April 2, 1991.
 
            On April 3, 1991, by Order Nunc Pro Tunc, the last full 
 
            paragraph on page 17 of the Arbitration Decision was amended 
 
            to read as follows:
 
               Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred forty-two and 
 
            89/100 dollars ($242.89) per week commencing July 14, 1990 
 
            and totalling thirty thousand three hundred sixty-one and 
 
            25/100 dollars ($30,361.25).
 
            On April 9, 1991, by Amended Order Nunc Pro Tunc, the sixth 
 
            paragraph of the Order on page 17 of the Arbitration 
 
            Decision was amended to read as follows:
 
               Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred thirty-one 
 
            and 87/100 dollars ($231.87) per week commencing January 16, 
 
            1989 and totalling twenty-eight thousand nine hundred 
 
            eighty-three and 75/100 dollars ($28,983.75).
 
            On April 11, 1991, claimant filed an Application for 
 
            Review-Reopening and/or Clarification asking whether an 
 
            award of interest should have been made in the decision.  
 
            Such an award of interest should have been made, but was 
 
            inadvertently omitted from the Order.
 
            IT IS THEREFORE ORDERED, Nunc Pro Tunc, that the following 
 
            paragraph should be added to the Order portion of the 
 
            Arbitration Decision filed April 2, 1991:
 
               All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            IT IS FURTHER ORDERED that, in all other respects, the 
 
            Arbitration Decision filed in this matter April 2, 1991 is 
 
            affirmed and ratified.
 
            Signed and filed this ______ day of ____________, 1991.
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN CASPER ADAMS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 878940
 
            vs.                           :
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on October 31, 1990, in 
 
            Cedar Rapids, Iowa.  The record consists of the testimony of 
 
            claimant, claimant's wife, Catharine Adams, and Rick Innis; 
 
            joint exhibits 1 through 12 and 16; and defendant's exhibits 
 
            A and B.  This is a proceeding in arbitration wherein the 
 
            claimant seeks permanent partial disability benefits and 
 
            healing period benefits as a result of an alleged injury 
 
            occurring on November 19, 1987.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged November 19, 1987 injury 
 
            arose out of and in the course of his employment;
 
            
 
                 2.  Whether claimant's alleged condition and alleged 
 
            disability is causally connected to his November 19, 1987 
 
            injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 4.  Whether claimant gave proper and sufficient notice 
 
            under 85.23 of the Iowa Code.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 43-year-old who left high school before 
 
            graduation.  Claimant related his work history prior to 
 
            beginning work for defendant employer on November 20, 1978.  
 
            Claimant's prior work history involved working as a 
 
            farmhand, building prefab homes, and removing and replacing 
 
            mortar (tuck pointer).  Claimant related his work duties for 
 
            defendant employer until he quit on November 19, 1987.  
 
            These jobs were manual labor jobs.  There is an 85.23 issue 
 
            in this case which is dispositive of this case.  For that 
 
            reason, it will be unnecessary to review certain facts and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            make certain findings as to the other issues of causal 
 
            connection, arising out of and in the course of employment, 
 
            the nature and extent of claimant's disability, and 
 
            entitlement to disability benefits, if any.
 
            
 
                 Claimant testified that on November 19, 1987, he was 
 
            injured lifting a box of parts at work and incurred a double 
 
            hernia.  Defendant does not contend claimant did not have a 
 
            hernia but contends it isn't work related and if it is, 
 
            defendant knew nothing about it until claimant filed a 
 
            petition on June 28, 1988.
 
            
 
                 Claimant testified as to several injuries over the 
 
            years, including a prior double hernia in May 1987.  
 
            Claimant emphasized he never filed workers' compensation 
 
            claims or received workers' compensation benefits for the 
 
            prior injuries or events even though he seemed to indicate 
 
            that most, if not all, were work related.  Claimant did 
 
            indicate he received a check from the insurance company for 
 
            his time off and medical bills as a result of these prior 
 
            injuries or medical conditions.  Defendant is self-insured 
 
            for any workers' compensation benefits.  Therefore, the 
 
            payments claimant received came from defendant's 
 
            non-occupational insurance company, namely, John Hancock 
 
            Mutual Life Insurance Company.  Being self-insured as to 
 
            workers' compensation benefits, any such benefits or claims 
 
            paid would come directly from the pocket of defendant 
 
            employer.
 
            
 
                 Claimant also is a union member.  The evidence shows 
 
            claimant was given information by defendant employer 
 
            regarding reporting any injuries.  Also, it appears the 
 
            union provides such information.
 
            
 
                 There is no credible record of the employer receiving 
 
            any notice of a workers' compensation claim by claimant.  
 
            Claimant contends he told his group leader, Larry Black, 
 
            that he was quitting because he had had enough in regard to 
 
            his hernias.  He said he was bent over and Mr. Black could 
 
            see he had problems.  Claimant was rather vague as to 
 
            anything else that he may have said.  He said he may have 
 
            said something about a divorce or marital problems.  
 
            Claimant contends this is notice under 85.23 of the 1987 
 
            Code of Iowa.  On November 20, 1987, claimant called Rick 
 
            Innis, who is in charge of the insurance, personnel and 
 
            workers' compensation for defendant employer (Defendant's 
 
            Exhibit A, page 3).  Claimant contends that this was notice.  
 
            Claimant wasn't clear as to the extent of the conversation 
 
            with Mr. Innis, but indicated that he told Mr. Innis he had 
 
            had a double hernia and said that Mr. Innis mentioned that 
 
            it was too late since he is no longer working there and, 
 
            therefore, no benefits would be paid.  Claimant also 
 
            indicated he talked to a Tony Cole a few days later trying 
 
            to get his job back and told him he had a double hernia.  He 
 
            said Mr. Cole told him he should not have left the 
 
            employment but should have gone to the personnel office.
 
            
 
                 Rick Innis testified that claimant called him at 9:15 
 
            a.m. on November 20, 1987 (Def. Ex. 8, p. 3) and that Mr. 
 
            Innis made a note of the nature of the conversation.  He 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            said claimant's reason for quitting was that people in the 
 
            plant were talking about claimant's wife and marriage and 
 
            that is why he walked off the job.  He recalled no other 
 
            conversation with claimant.  Mr. Innis said that claimant 
 
            never said anything about a double hernia or about any 
 
            injury.  Mr. Innis said the first time he knew of claimant's 
 
            hernia problem was when he found out the claimant had filed 
 
            a petition and served it on defendant employer.
 
            
 
                 Claimant's attorney interrogated Mr. Innis, at length.  
 
            He acknowledged that it is beneficial for the company to 
 
            conclude a claim is nonoccupational, as the company pays the 
 
            workers' compensation claim out of its own pocket since it 
 
            is self-insured.  The burden is on claimant to prove his 
 
            case.  The undersigned believes Mr. Innis is a credible 
 
            witness taking all other evidence on this issue into 
 
            consideration.  Although there is no excuse, claimant does 
 
            seem knowledgeable of what he needs to do if he is hurt on 
 
            the job.
 
            
 
                 The undersigned would not hold the claimant to any 
 
            elaborate procedure as to notice of an injury.  Although 
 
            notice to a supervisor or foreman would be sufficient, it is 
 
            hard to conclude that claimant's manner of giving his 
 
            alleged notice on the day he quit, November 19, 1987, or 
 
            alleged notice as a result of his call to Mr. Innis on 
 
            November 20, 1987, is notice of an alleged work injury.
 
            
 
                 It is important to defendant employer to know as soon 
 
            as possible of any work injury as it does make a difference 
 
            to the company financially whether it is or isn't work 
 
            related.  It is hard to believe the group nonoccupational 
 
            insurance company would accept liability for a work-related 
 
            claim without any question.  They obviously paid claimant 
 
            based on a nonwork-related injury.  In looking at claimant's 
 
            history and repeated hernia problems, you could see that the 
 
            insurance company might question claimant's problems as not 
 
            being work related, if they actually weren't.  At least the 
 
            insurance carrier had early notice of a claim which it could 
 
            have denied, thereby, putting the burden on defendant 
 
            employer to then defend its position and make an early 
 
            investigation close to the time of the alleged November 19, 
 
            1987 injury.  It seems irrational that claimant would quit 
 
            the company on the same day he was allegedly injured on the 
 
            job on November 19, 1987.
 
            
 
                 Claimant has the burden to show he gave the defendant 
 
            notice as provided in 85.23 of the 1987 Iowa Code.  Claimant 
 
            has failed to prove he gave sufficient notice within the 
 
            limits of the statute and the undersigned finds claimant did 
 
            not give timely notice as provided by the statute.
 
            
 
                 As mentioned earlier, the undersigned is not further 
 
            reviewing herein certain evidence as the other issues are 
 
            moot, but the undersigned notes that it would appear 
 
            claimant also could not sustain his burden of proof as to 
 
            claimant's alleged injury of November 19, 1987 arising out 
 
            of and in the course of his employment or that his medical 
 
            condition and alleged disability is causally connected to 
 
            his November 19, 1987 injury.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 It is found claimant failed to give notice under 85.23 
 
            of the 1987 Iowa Code, and, therefore, claimant shall take 
 
            nothing from these proceedings.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.23, 1987, provides:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant failed to give the employer or employer's 
 
            representative any notice of any injury within 90 days from 
 
            the date of the occurrence of an injury and that defendant 
 
            employer did not have actual notice of any alleged injury of 
 
            November 19, 1987.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendant and claimant shall pay equally the costs 
 
            of this action, pursuant to Division of Industrial Services 
 
            Rule 343-4.33.
 
            
 
                 
 
                 Signed and filed this _____ day of November, 1990.
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies to:
 
            
 
            Mr Jerry Zimmerman
 
            Attorney at Law
 
            129 1st Ave SW
 
            Cedar Rapids IA 52404
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
                 
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2401
 
                      Filed November 8, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN CASPER ADAMS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 878940
 
            vs.                           :
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-2401
 
            Claimant failed to give notice as provided in Iowa Code 
 
            section 85.23
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZA PEARL NOEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 878911
 
            ROLSCREEN,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            Signed and filed this ______ day of April, 1990.
 
            
 
            
 
            
 
            
 
                                         _____________________________
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa 52577
 
            
 
            Mr. Larry D. Spaulding
 
            Attorney at Law
 
            1100 Des Moines Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed April 16, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZA PEARL NOEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 878911
 
            ROLSCREEN,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9998
 
            
 
            Deputy's decision summarily affirmed on appeal.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZA PEARL NOEL,
 
         
 
              Claimant,                                File No. 878911
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         ROLSCREEN COMPANY,                            D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         OCT 31 1989
 
         EMPLOYERS MUTUAL COMPANIES,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Eliza Pearl 
 
         Noel, claimant, against Rolscreen Company, employer, and 
 
         Employers Mutual Companies, insurance carrier, defendants, for 
 
         benefits as the result of an injury that occurred on April 27, 
 
         1988.  A hearing was held in Des Moines, Iowa, on June 15, 1989, 
 
         and the case was fully submitted at the time of the hearing.  
 
         Claimant was represented by Harold B. Heslinga.  Defendants were 
 
         represented by Larry W. Spaulding.  The record consists of the 
 
         statement of stipulated facts submitted by the parties and Joint 
 
         Exhibits A through E.  The deputy ordered a transcript of the 
 
         abbreviated hearing.  Both attorneys submitted excellent briefs 
 
         at the time of the hearing.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on April 27, 1988, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to temporary disability benefits 
 
         from April 28, 1988 to June 21, 1988.
 
         
 
              That claimant is entitled to 43.7 weeks of permanent 
 
         disability benefits based upon a 64 percent scheduled member loss 
 
         of the left index finger and a 71 percent scheduled member loss 
 
                                                
 
                                                         
 
         of the left second finger.
 
         
 
              That the commencement date for permanent disability benefits 
 
         iS June 21, 1988.
 
         
 
              That the marital status of claimant is single and that 
 
         claimant is entitled to two exemptions.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
              That defendants seek no credit for employee nonoccupational 
 
         group health plan benefits paid to claimant prior to hearing.
 
         
 
              That in the event of an award of benefits that defendants 
 
         are entitled to a credit for 7 5/7 weeks of temporary disability 
 
         benefits and 43.7 weeks of permanent disability benefits paid to 
 
         claimant prior to or contemporaneous with the hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUE
 
         
 
              The sole issue presented for determination at the time of 
 
         the hearing was the proper rate of compensation.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Selected items from the statement of stipulated facts not 
 
         included above are as follows:
 
         
 
              That on April 27, 1988, claimant was operating a WTD jam 
 
         drill in the performance of her duties as a shaper cutout 
 
         operator.  She was in the process of cleaning the jam drill.  She 
 
         turned the machine off, removed the guard and was brushing debris 
 
         away from the router bit.  Her left index finger, left second 
 
         finger and left third finger came in contact with the router bit 
 
         while the bit was coasting to a stop.  Claimant sustained an 
 
         amputation of the distal interphalangeal joint of both the index 
 
         finger and the second finger and sustained lacerations of the 
 
         volar aspect of the third finger.  Claimant received medical 
 
         treatment from Gene VanZee, M.D. and Charles Schafer, M.D., and 
 
         that all medical bills, in the amount of $3,259.07 have been paid 
 
         by defendants.  Thomas W. Bower, L.P.T. and Scott B. Neff, D.O., 
 
         determined that claimant sustained a 64 percent permanent 
 
         impairment of the left index finger and 71 percent permanent 
 
         impairment of the left second finger which results in 43.7 weeks 
 
         of permanent disability benefits.
 
         
 
              That parties stipulated that claimant's hourly rate of 
 
         regular earnings was $9.49 per hour on January 30, 1988; $9.53 
 
         per hour effective February 1, 1988; and $9.55 per hour effective 
 
         April 4, 1988.  Claimant's average weekly hours for the 13 weeks 
 
         prior to April 27, 1988, was 45 hours per week.  Claimant 
 
         received a Christmas bonus in 1988 and has received this 
 
                                                
 
                                                         
 
         Christmas bonus in her past yeArs of employment with employer.  
 
         Claimant's Christmas bonus was based on 15 percent of her gross 
 
         annual earnings for the period from December 1, 1987 to November 
 
         30, 1988.  Claimant's payroll check stub has shown an amount of 
 
         hourly wage rate for regular earnings and an amount of hourly 
 
         wage rate including the Christmas bonus.  Claimant's reported 
 
         hourly wage rate including the Christmas bonus was $10.91 as of 
 
         January 30, 1988; $10.96 effective February 1, 1988; and $10.98 
 
         effective April 4, 1988.
 
         
 
              The Christmas Bonus Program is a totally employer funded 
 
         program provided only to active employees as determined by their 
 
         employment status on November 30, the last day of the fiscal 
 
         year. An active employee also includes employees who have died, 
 
         become disabled, retired or who are on leave for military 
 
         service.  The qualifications for participation in the Christmas 
 
         Bonus Program arE:  (1) active employee status; (2) number of 
 
         years of continuous service; (3) amount of gross wages; and (4) 
 
         on November 30, of the applicable fiscal year.  Employer provides 
 
         other fringe benefits of health, dental and life insurance; 
 
         profit sharing; vacation, holiday and jury duty pay; discount on 
 
         company products; tuition assistance; and a monetary award for 
 
         perfect attendance of hourly employee.  This concludes the 
 
         statement of stipulated facts.
 
         
 
              The employee's handbook under the index tab for compensation 
 
         provides as follows:
 
         
 
              YOUR CHRISTMAS BONUS
 
         
 
              Rolscreen values your years of loyalty indicated by length 
 
              of service.  The Christmas Bonus plan provides an annual 
 
              guaranteed bonus of varying amounts according to the length 
 
              of service and is another way in which such loyalty is 
 
              recognized and rewarded.  (See Benefits section for 
 
              details.)
 
         
 
         (Exhibit A, deposition exhibit 1, page 16)
 
         
 
              The benefits section of the employee's handbook contains 
 
         this information about the Christmas Bonus:
 
         
 
         CHRISTMAS BONUS
 
         
 
              Rolscreen pays a Christmas Bonus each year to every person 
 
              on the payroll as of November 30.  The bonus amounts are 
 
              graduated and increased based on the length of continuous 
 
              service as of November 30 of the year for which the bonus is 
 
              being paid.  The amounts of bonus to be paid are percentages 
 
              of your gross earnings froM December 1 to November 30, as 
 
              shown below:
 
         
 
                             Service           
 
                         Percent
 
                         0 to 12 months    =    71/2%
 
                                                
 
                                                         
 
                         1 to 2 years      =       9%
 
                         2 to 3 years      =  10 1/2%
 
                         3 to 5 years      =      12%
 
                         5 to 10 years     =  13 1/2%
 
                         10 years and over =      15%
 
         
 
              Since this is a guaranteed bonus, you will find two hourly 
 
              rates on your check stub.  Your "Regular Base Rate" is your 
 
              regular rate on which overtime is computed.  Your "Hourly 
 
              Wage Including Bonus" includes your anticipated bonus.
 
         
 
              Arlin M. Harvey testified by deposition on August 12, 1988, 
 
         that he has been employed as personnel specialist for employer for 
 
         13 years.  He is a 24 year employee of employer, starting on 
 
         January 3, 1964.  He testified that each new employee receives an 
 
         employee's handbook and an explanation of benefits, which includes 
 
         mention of the Christmas Bonus.  He said the compensation section 
 
         of the manual includes cost of living allowance, Christmas bonus, 
 
         job performance pay classifications, exemptions, overtime and 
 
         those things dealing with pay.  The Christmas bonus has been in 
 
         effect since the 1940's.  The exact beginning date is unknown.  
 
         The Christmas bonus is paid to anyone who is an active employee on 
 
         November 30 of each year (ex. A, pp. 19, 41 & 42).  November 30 is 
 
         the close of the fiscal year.  Retired employees, disabled 
 
         employees, deceased employees and those on military leave of 
 
 
 
                             
 
                                                         
 
         absence are considered to be active employees for purposes of the 
 
         Christmas bonus.  No payments are made prior to November 30 of any 
 
         year.  As of November 30 the payment is guaranteed to eligible 
 
         employees, but cannot be guaranteed prior to that time (ex. A, pp. 
 
         20 & 21).  There is no separate fund for the bonus, amounts do not 
 
         accrue as the year progresses, and the employee cannot borrow 
 
         money against the anticipated bonus.  The philosophy of the 
 
         Christmas bonus is incentive to encourage longevity and to 
 
         encourage employees to become long-term employees (ex. p. 22).  
 
         The pay stub of the hourly employees show both the regular hourly 
 
         rate and also what it would be using the anticipated hourly rate 
 
         if the Christmas bonus was included.  This is done to encourage 
 
         employee retention (ex. A, pp. 23 & 32).
 
         
 
              The Christmas bonus is not a negotiated benefit, but rather 
 
         a voluntary program provided by management for employee relations 
 
         and employee retention (ex. A, p. 27).  Harvey said it could 
 
         possibly be called premium, payment, reward or compensation (ex. 
 
         A, pp. 27-32).  The employees identify it as a Christmas bonus. 
 
         The Christmas bonus amounts are not used in the calculation of 
 
         the workers' compensation rate (ex. A, p. 30), even when the 13 
 
         weeks prior to the injury would include the period immediately 
 
         after November 30 (ex. A, pp. 43 & 44).  If a person was sick and 
 
         the gross wages were affected then this would also affect the 
 
         amount of the Christmas bonus (ex. A, pp- 31 & 32).  Claimant's 
 
         payroll register for April 30, 1988, was introduced into 
 
         evidence.  April 30, 1988, was the end of the pay period for the 
 
         week in which the inJury occuRred.  (ex. A, dep. ex. 2).  The 
 
         term guaranteed bonus has appeared in the handbook for a number 
 
         of years.  That terminology has been used for the last ten years 
 
         (ex. A, p. 41). Employer has no specific fund set aside to pay 
 
         the Christmas bonus (ex. A, pp. 23 & 44).
 
         
 
              Harvey said the workers' compensation gross earnings rate 
 
         excludes the Christmas bonus, profit sharing, and other employee 
 
         benefits (ex. A, pp. 42 & 48).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
         
 
              Iowa Code section 85.36 provides as follows:
 
         
 
              Basis of computation.
 
         
 
                   The basis of compensation shall be the weekly earnings 
 
              of the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar: ...
 
         
 
                                                
 
                                                         
 
              Subsection six, of Iowa Code section 85.36, with respect to 
 
         employees paid on an hourly basis reads as follows:
 
         
 
                   In the case of an employee who is paid on a daily, or 
 
              hourly basis, or by the output of the employee, the weekly 
 
              earnings shall be computed by dividing by thirteen the 
 
              earnings, not inclUding overtime or premium pay, of said 
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
         
 
              Gross earnings are defined in Iowa Code section 85.61, 
 
         Definitions, subparagraph 12:
 
         
 
                   "Gross earnings" means recurring payments by employer 
 
              to the employee for employment, before any authorized or 
 
              lawfully required deduction or withholding of funds by the 
 
              employer, excluding irregular bonuses, retroactive pay, 
 
              overtime, penalty pay, reimbursement of expenses, expense 
 
              allowances, and the employer's contribution for welfare 
 
              benefits.
 
         
 
              The proper rate of compensation is calculated as follows:
 
         
 
              First of all, the first line of section 85.36 states that the 
 
         basis of compensation shall be the earnings of the employee at the 
 
         time of the injury.  Irrespective of whether the Christmas bonus 
 
         was a regular or irregular bonus, the Christmas bonus was not the 
 
         earnings of the employee at the time of the injury on April 27, 
 
         1988, even though the estimated hourly rate of the bonus was shown 
 
         on the pay stub along with the regular earnings to which claimant 
 
         was entitled at the time of the injury.  The Christmas bonus was 
 
         subject to the condition precedent that claimant be an active 
 
         employee on November 30, 1988.  Until that occurred the Christmas 
 
         bonus was merely an expectancy.  There was no vested right to it 
 
         until claimant performed the continuous employment required and 
 
         was determined to be an active employee on November 30, 1988.  
 
         This is true even though claimant had received the bonus every one 
 
         of the 15 years she had been employed by employer.  At any given 
 
         time, claimant was free to resign from her employment.  Also, she 
 
         could have been discharged by employer.  If she resigned or was 
 
         discharged, she would not have been entitled to the bonus.
 
         
 
              The employee's handbook states that the Christmas bonus is 
 
         guaranteed.  However, it is guaranteed only on the condition 
 
         precedent that claimant perform continuous employment up to and 
 
         including November 30 and be determined to be an active employee 
 
         on that date.  The employee handbook clearly states, "Rolscreen 
 
         pays a Christmas Bonus each year to every person on the payroll 
 
         as of November 30."  The handbook adds that the regular and bonus 
 
         rates will be shown on the pay stub and concludes, "Your Hourly 
 
         Wage including Bonus' includes your anticipated bonus."  The 
 
         words "anticipated bonus" make it clear that the Christmas bonus 
 
         is not a reality until November 30.  Prior to November 30, it is 
 
         only a contingency.  Defendants have pointed out that the weekly 
 
                                                
 
                                                         
 
         rate of compensation cannot be based on speculative earnings.  
 
         Fitzpatrick v. Hupp Electric Motors, Inc., file number 813668, 
 
         filed March 5, 1987; Fitzpatrick v. Hupp Motors, Inc., file 
 
         number 813668 (Appeal Decision, September 21, 1988).
 
         
 
              Harvey, the personnel specialist, testified that no payments 
 
         are made prior to November 30 in any given year.  He said the 
 
         bonus is only guaranteed to employees who are eligible on that 
 
         date.  He said that it is not guaranteed prior to that date. 
 
         Consequently, the Christmas bonus cannot be included in the rate 
 
         calculation in this case because it was not part of the actual 
 
         earnings of the employee on the date of the injury as required by 
 
         the first line of Iowa Code section 85.36.
 
         
 
              Furthermore, subsection six of Iowa Code section 85.36 
 
         states that the rate calculation is based on the earnings "in the 
 
         last completed period of thirteen consecutive calendar weeks 
 
         immediately preceding the injury."
 
         
 
              This determination is made with all due respects to the 
 
         determination of another deputy made in a similar case cited by 
 
         claimant in her brief.  Brewer v. Rolscreen Company, file number 
 
         833703, filed November 17, 1988.  That case appears to be 
 
         determined on whether the bonus is regular or irregular.  This 
 
         decision does not progress to that point.  This case excludes the 
 
         Christmas bonus because it was not the actual earnings of the 
 
         employee at the time of the injury.
 
         
 
              It may be noted however, that Industrial Commissioner David 
 
         E. Linquist has determined that a bonus which an employee 
 
         received almost every month, even though the amount varied, was 
 
         incentive pay, and was not an irregular bonus under Iowa Code 
 
         section 85.61(12).  He concluded that the bonus was regular 
 
         because it was paid every month and thus it was properly included 
 
         in the determination of rate under section 85.61(12).  Marcks v. 
 
         Richman Gordman, file number 679369 (Appeal Decision June 29, 
 
         1988).
 
         
 
              Likewise, this deputy found that a bonus that was an 
 
         integral part of an employer's overall compensation system paid 
 
         to all employees based on production which was available to be 
 
         paid every month, if earned, was not an irregular bonus and was 
 
         included in the calculation of rate.  Lewis v. Dee Zee 
 
         Manufacturing, file number 797154, filed September 11, 1989.  
 
         Accordingly, this Christmas bonus is not excluded in the 
 
         calculation of the rate in this case because it is an irregular 
 
         bonus, but rather it is excluded in the calculation of rate 
 
         because it was not included in the actual earnings of the 
 
         employee at the time of the injury (Iowa Code section 85.36, line 
 
         1 of that section and subsection 6).
 
         
 
              Based on the stipulated information submitted by the 
 
         parties, the rate in this case is determined as follows:  
 
         dividing by 13, the earnings of the employee, "in the last 
 
         completed period of thirteen consecutive calendar weeks 
 
                                                
 
                                                         
 
         immediately preceding the injury."  (Iowa Code section 
 
         85.36,.subsection 6).  Harvey testified that Saturday, April 30, 
 
         1988, was the end of the pay period for the week in which 
 
         claimant was injured.  Therefore, the last completed week before 
 
         the injury was one week earlier on Saturday, April 23, 1988.  The 
 
         last completed 13 weeks preceding the injury are set out below.  
 
         The parties stipulated to 45 hour weeks.  The parties stipulated 
 
         that on January 30, 1988; the regular rate of pay was $9.49 per 
 
         hour; on February 1, 1988, it was $9.53 per hour; and on April 4, 
 
         1988, it was $9.55 per hour.
 
         
 
                                                             GROSS
 
                WEEK                         HOURS           WEEKLY
 
               ENDING         RATE           WORKED          EARNINGS
 
         
 
         1.   1-30-88        $9.49             45            $427.05
 
         2.   2-06-88         9.53             45             428.85
 
         3.   2-13-88         9.53             45             428.85
 
         4.   2-20-88        9.53             45             428.85
 
         5.   2-27-88        9.53             45             428.85
 
         6.   3-05-88        9.53             45             428.85
 
         7.   3-12-88        9.53             45             428.85
 
         8.   3-19-88        9.53             45             428.85
 
         9.   3-26-88        9.53             45             428.85
 
         10.  4-02-88        9.53             45             428.85
 
         11.  4-09-88        9.55             45             429.75
 
         12.  4-16-88        9.55             45             429.75
 
         13.  4-23-88        9.55             45             429.75
 
                                    TOTAL EARNINGS        $5,575.95
 
                                    DIVIDED BY             13 weeks
 
         
 
                                   GROSS WEEKLY WAGES      $  428.92
 
         
 
                           
 
                                                         
 
         
 
              Rounding $428.92 up to $429 and going to this amount of 
 
         gross weekly wages in the Guide to Iowa Workers' Compensation 
 
         Claim Handling for July 1, 1987, the book shows that the rate of 
 
         weekly compensation for a single person with two exemptions is 
 
         $263.25 per week.  The parties stipulated that claimant was 
 
         single and was entitled to two exemptions.
 
         
 
                              FINDING OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         finding of fact is made:
 
         
 
              That the proper rate of compensation based on the facts of 
 
         this case is $263.25 per week as shown above.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made:
 
         
 
              That the proper rate of compensation in this case is to be 
 
         determined by claimant's regular earnings at the time of the 
 
         injury because the Christmas bonus was only an expectancy on the 
 
         date of the injury.
 
         
 
              That the proper rate of compensation based on the evidence 
 
         presented is $263.25 per week.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant seven point seven one four 
 
         (7.714) weeks of healing period benefits at the rate of two 
 
         hundred sixty-three and 25/100 dollars ($263.25) per week in the 
 
         total amount of two thousand thirty and 71/100 dollars 
 
         ($2,030.71) for the period from April 28, 1988 to June 21, 1988.
 
         
 
              That defendants pay to claimant forty-three point seven 
 
         (43.7) weeks of permanent partial disability benefits at the rate 
 
         of two hundred sixty-three and 25/100 dollars ($263.25) per week 
 
         in the total amount of eleven thousand five hundred four and 
 
         03/100 dollars ($11,504.03) commencing June 21, 1988.
 
         
 
              That these amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are entitled to a credit for seven point 
 
         seven one four (7.714) weeks of temporary disability benefits 
 
         paid prior to hearing at whatever rate was used at that time and 
 
         if the rate was less than two hundred sixty-three and 25/100 
 
                                                
 
                                                         
 
         dollars ($263.25) as shown by the form 2A's in the industrial 
 
         commissioner's file, then claimant is due the difference plus 
 
         statutory interest.
 
         
 
              That defendants are entitled to a credit for forty-three 
 
         point seven (43.7) weeks of permanent partial disability benefits 
 
         paid at the time of hearing, at the rate of two hundred 
 
         sixty-three and 25/100 dollars ($263.25), according to the 
 
         representation of defendants' counsel.  (transcript page 5).
 
         
 
              That the costs of this proceeding are charged to defendants 
 
         pursuant to division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file any claim activity reports that may be 
 
         requested by this agency
 
         
 
         
 
              Signed and filed this 31st day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harold Heslinga
 
         Attorney at Law
 
         118 N Market St.
 
         Oskaloosa, IA  52577
 
         
 
         Mr. Larry D. Spaulding
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, IA  50309
 
         
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3001; 3002; 3003
 
                                            Filed October 31, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZA PEARL NOEL,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 878911
 
         
 
         ROLSCREEN COMPANY,                        A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3001; 3002; 3003
 
         
 
              A Christmas bonus paid to all employees who were active 
 
         employees on November 30 of each year (the close of the fiscal 
 
         year) was not used to calculate gross earnings because it was not 
 
         included in the actual weekly earnings of the employee at the 
 
         time of injury on April 27, 1988 (Iowa Code section 85.36, line 
 
         1). Furthermore, it was not the actual earnings of the employee 
 
         in the last completed period of thirteen consecutive weeks 
 
         immediately preceding the injury which occurred on April 27, 1988 
 
         (Iowa Code section 85.36, subparagraph 6).  If the employee 
 
         resigned or was discharged prior to November 30, she would not 
 
         have received the Christmas bonus.  Therefore, the Christmas 
 
         bonus was merely an expectancy or a contingency on April 27, 
 
         1988, when the injury occurred.  This decision did not progress 
 
         to the point of determining whether it was a regular or an 
 
         irregular bonus under Iowa Code section 85.62(12), but implies 
 
         that it is probably a regular bonus citing the industrial 
 
         commissioner in the Marcks case and one of the deputy's earlier 
 
         decisions.