Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL FICHTER,               :
 
                                          :
 
                 Claimant,                :         File No. 879312
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            GRIFFIN PIPE PRODUCTS CO.,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 19, 1989.  Claimant sustained a 
 
            traumatic injury to his back approximately February 15, 
 
            1988, and now seeks benefits under the Iowa Workers' 
 
            Compensation Act from his self-insured employer, Griffin 
 
            Pipe Products Company.
 
            
 
                 Hearing on the arbitration petition was had in Council 
 
            Bluffs, Iowa, on December 12, 1989.  The record consists of 
 
            joint exhibits 1 through 39 and the testimony of claimant 
 
            and Patricia Conway.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Griffin Pipe 
 
            Products Company on or about February 15, 1988; that the 
 
            injury caused temporary disability from March 8, 1988 
 
            through August 7, 1988; that if claimant has sustained 
 
            permanent disability, it is an industrial disability to the 
 
            body as a whole and the commencement date is August 8, 1988; 
 
            that the appropriate rate of weekly compensation is $385.94; 
 
            that all requested medical benefits have been or will be 
 
            paid by defendant, except for the bill of Alan H. Fruin, 
 
            M.D.; that defendant paid 51 and 1/2 weeks of compensation 
 
            at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            injury caused permanent disability and, if so, the extent 
 
            thereof; whether Dr. Fruin's bill is compensable under Iowa 
 
            Code section 85.27 or 85.39 (whether those expenses were 
 
            incurred for reasonable and necessary medical treatment, 
 
            were causally connected to the work injury or authorized by 
 
            defendant being disputed); taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, 35 years of age at the time of hearing, quit 
 
            school during the tenth grade, but earned his General 
 
            Equivalency Degree in approximately 1975.  He also has some 
 
            training in various labor issues through his positions with 
 
            the Steel Workers' Union.
 
            
 
                 Claimant has worked in construction (painting, roofing, 
 
            carpentry and the like), for a decorating business, and as a 
 
            beef lugger for a packinghouse.  He began his employment 
 
            with defendant in March, 1977.
 
            
 
                 Defendant is a foundry business.  Claimant has bid into 
 
            and held numerous jobs during his lengthy tenure, some of 
 
            which required him to lift up to 100 pounds.  He was 
 
            eventually promoted into a management position as casting 
 
            foreman, the position he held at the time of the subject 
 
            injury.  However, he voluntarily gave that job up shortly 
 
            after the injury because he did not like working second 
 
            shift hours.
 
            
 
                 Claimant also suffered a back injury in June, 1985 
 
            arising out of and in the course of this employment.  It 
 
            resulted in surgery at the L3-4 level in July of that year.  
 
            Claimant returned to work with no restrictions whatsoever 
 
            and did not seek medical treatment or give up any activities 
 
            between injuries.  The parties entered into an agreement for 
 
            settlement pursuant to Iowa Code section 86.13 approved by 
 
            this office on May 15, 1986.  The parties agreed that 
 
            claimant had sustained a 10 percent industrial disability.
 
            
 
                 The subject work injury occurred when claimant was 
 
            attempting to move a heavy pipe when his pry bar slipped and 
 
            he was thrown backwards into an electrical panel.  His back 
 
            felt hot and pain radiated into both buttocks and the right 
 
            leg.  As noted, claimant shortly thereafter transferred back 
 
            to the general labor pool, but found this work to be hard on 
 
            his back, exacerbating the condition.
 
            
 
                 Claimant eventually saw Behrouz Rassekh, M.D., the 
 
            company doctor, on March 8, 1988.  Dr. Rassekh initially 
 
            treated the problem as a sprain and claimant attempted to 
 
            return to light duty for a few days, but unsuccessfully.  He 
 
            thereafter exacerbated the condition while twisting during a 
 
            shower taken at work.  A myelogram on March 29, 1988 
 
            disclosed a disc herniation at L2-3 for which claimant 
 
            underwent surgery described as bilateral hemilaminectomy, 
 
            L2-3, and removal of large extruded disc on March 30, 1988.
 
            
 
                 As was the case following claimant's first injury, this 
 
            surgery was performed by Dr. Rassekh, who has expressed the 
 
            view that the subject injury was a "new" injury unrelated to 
 
            the 1985 herniation.
 
            
 
                 Claimant was eventually returned to work with a 
 
            75-pound lifting restriction and recommendations against 
 
            repeated bending and stooping.  Dr. Rassekh initially 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            assessed claimant as having sustained a 15 percent 
 
            impairment to the body as a whole, 10 percent of which was 
 
            attributable to the 1985 injury.  At the time of his 
 
            deposition on October 4, 1989, he rated claimant as having 
 
            sustained a 10 percent impairment for each herniation, with 
 
            a total impairment in the 20-25 percent range.  He also 
 
            indicated that the 75-pound lifting restriction was a 
 
            restriction on the maximum weight claimant could lift, and 
 
            did not mean he could lift that weight repeatedly.
 
            
 
                 Claimant also underwent a physical therapy functional 
 
            capacity assessment at Jennie Edmundson Memorial Hospital on 
 
            October 11 and October 13, 1989.  In summary, Rachel Elder, 
 
            L.P.T., found claimant capable of lifting 75 pounds, 
 
            carrying 70 pounds, stand up lifting 40 pounds, pulling 47 
 
            pounds and pushing 68 pounds.  Claimant performed the 
 
            following activities adequately:  kneeling, unloaded 
 
            repeated bending, overhead reach, standing, walking one-half 
 
            mile, sitting, stair climbing, ladder climbing, balancing, 
 
            and unloaded stoop to floor.  He showed normal upper 
 
            extremity coordination.  Claimant's overhead reach, weighted 
 
            and unweighted, was functionally limited and he self-limited 
 
            reciprocal leg motion and level lift at 80 pounds.  Claimant 
 
            was described as a willing participant.  It was recommended 
 
            that he would benefit from a program of back school 
 
            education and a program to address range of motion in the 
 
            trunk as well as increasing strength of abdominal and back 
 
            extensor musculature.
 
            
 
                 Claimant was also seen for consultation by Alan H. 
 
            Fruin, M.D., on September 28, 1988.  There is no evidence 
 
            that Dr. Fruin was authorized by defendant or Dr. Rassekh, 
 
            and he apparently was seen for an evaluation only.  Dr. 
 
            Fruin noted that there was no ongoing significant problem 
 
            relating to the 1988 surgery and rated claimant as having 
 
            sustained a permanent partial "disability" to the body as a 
 
            whole of 10 percent based on the surgery at L2-3 with 
 
            minimal residual pain and paresthesias in the feet.
 
            
 
                 Claimant continues to work for defendant on jobs within 
 
            his medical restrictions.  Although supervisory positions 
 
            have opened up on the first and third shifts, claimant has 
 
            not sought nor been offered those positions.  He agrees that 
 
            he would have been able to continue his work as a casting 
 
            foreman if able to get one of the 75-100 people under his 
 
            supervision to do the occasional heavy lifting required when 
 
            production breaks down.
 
            
 
                 Claimant now says his symptoms have improved, but that 
 
            he has good and bad days, particularly when he stands all 
 
            day at work.  He suffers occasional numbness in the back and 
 
            legs and has given up certain activities, such as softball, 
 
            bowling, and coaching his children in athletic endeavors.  
 
            He is unable to drive long distances and finds long standing 
 
            or sitting to hurt.  He now turns down all offered overtime 
 
            hours.
 
            
 
                 Vocational rehabilitation consultant Patricia G. Conway 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            interviewed claimant once at defendants' behest and set up 
 
            the functional capacity evaluation at Jennie Edmundson 
 
            Memorial Hospital.  Noting that lifting in the 50-100 pound 
 
            range is categorized as "heavy," she testified that claimant 
 
            could perform sedentary, light, medium and at least some 
 
            heavy jobs.  She noted that his transferrable skills include 
 
            supervision and shipping and receiving work, and generally 
 
            felt that claimant was now precluded from approximately 10 
 
            percent of the jobs he could perform prior to the subject 
 
            work injury.  She agreed that some employers do discriminate 
 
            on the basis of a history of back injuries and conceded that 
 
            she did not contact any employers on claimant's behalf or 
 
            advise him of any jobs for which he might be qualified.  On 
 
            the other hand, claimant was employed at the time of the 
 
            interview (and at the time of hearing) and intends to stay 
 
            with defendant.
 
            
 
                 Certified professional counselor James T. Rogers saw 
 
            claimant in 1989 and concluded that claimant had acquired 
 
            rather few transferrable job skills, including "adjusting to 
 
            performing repetitious uncomplicated work; following simple 
 
            directions or instructions; observing safety rules; tending 
 
            assorted machines and working to precise measurements."  He 
 
            also noted claimant had some supervisory experience.  He 
 
            noted that claimant would be viewed as an increased risk by 
 
            many employers, but that he was young enough to profit from 
 
            job training and acquisition of new skills and had certain 
 
            assets, including his personal appearance and demeanor, his 
 
            excellent attitude towards work and supervisory experience.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The parties agree that claimant sustained a work injury 
 
            causing temporary disability from March 8 through August 7, 
 
            1988 (21 weeks, 6 days).  They dispute whether the work 
 
            injury caused permanent disability and the extent thereof.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            15, 1988 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 This writer thinks the dispute as to causation is 
 
            spurious.  Claimant clearly had a work injury which required 
 
            surgical treatment.  The only physician to express an 
 
            opinion on causation is the treating physician, Dr. Rassekh, 
 
            who believes that a causal nexus does exist.  There is no 
 
            countervailing evidence in the record or indication that 
 
            claimant sustained any unrelated injury to his back.  The 
 
            evidence is overwhelming that this work injury caused 
 
            permanent disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant's medical restrictions are comparatively 
 
            insignificant for an individual who has undergone back 
 
            surgery at two levels.  Nonetheless, it is the restrictions 
 
            he was given that matter, rather than restrictions a 
 
            different physician might have imposed.  The functional 
 
            capacity evaluation performed at Jennie Edmundson Memorial 
 
            Hospital also indicates claimant is able to function with 
 
            Dr. Rassekh's 75-pound lifting restriction.
 
            
 
                 While there are some jobs at Griffin Pipe Products 
 
            Company that claimant may not be able to perform now, this 
 
            in general appears to be fairly heavy work.  Defendant has 
 
            made a conscientious effort to keep claimant employed within 
 
            his work restrictions.  In fact, there appears no reason why 
 
            claimant could not return to the work he held at the time of 
 
            the injury, and which he left only for unrelated personal 
 
            reasons.  With respect to Griffin Pipe Products Company, a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            business with which claimant has been employed since 1977, 
 
            claimant really has no loss of earning capacity, since he is 
 
            still capable of performing the most highly paid work he has 
 
            performed with that business.  A voluntary election to leave 
 
            the ranks of management for reasons unrelated to the work 
 
            injury should not operate to increase claimant's industrial 
 
            disability.
 
            
 
                 On the other hand, there certainly are jobs that 
 
            claimant cannot now perform with defendant and with other 
 
            potential employers.  In addition, it is clear that an 
 
            individual who has suffered two surgical procedures to the 
 
            back is likely to be less attractive to potential employers 
 
            than an individual who has suffered only one (as will be 
 
            recalled, the first back injury has already been compensated 
 
            through an Agreement for Settlement approved by this 
 
            agency).  But, claimant has a GED, is of an intelligence 
 
            clearly suitable for retraining if necessary, has experience 
 
            in supervision, has some experience in dealing with labor 
 
            issues, and has shown himself to be a willing and 
 
            industrious worker.
 
            
 
                 Considering the above factors in particular and the 
 
            record as a whole, it is held that claimant has sustained an 
 
            additional industrial disability of 10 percent of the body 
 
            as a whole over and above the industrial disability that 
 
            preceded the subject work injury in February, 1988.
 
            
 
                 Claimant seeks compensation totalling $88.00 for Dr. 
 
            Fruin's fee.  This cannot be compensated as a medical 
 
            expense under Iowa Code section 85.27 because it was not 
 
            authorized by defendants (who accepted liability for the 
 
            injury and provided medical care).  Actually, this expense 
 
            appears to be for a medical evaluation pursuant to Iowa Code 
 
            section 85.39.  However, a review of the hearing assignment 
 
            order discloses that section 85.39 was not listed as an 
 
            issue for this hearing, and therefore cannot be considered.
 
            
 
                 Claimant has also submitted certain costs, including 
 
            the cost of a vocational rehabilitation evaluation totalling 
 
            $345.00.  This cost can be awarded only in the sum of 
 
            $150.00 as equivalent to the testimony of an expert witness.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant twenty-one point 
 
            eight five seven (21.857) weeks of healing period benefits 
 
            at the stipulated rate of three hundred eighty-five and 
 
            94/100 dollars ($385.94) per week commencing March 8, 1988 
 
            and totalling eight thousand four hundred thirty-five and 
 
            49/100 dollars ($8,435.49).
 
            
 
                 Defendants shall pay unto claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of three hundred eighty-five and 94/100 dollars ($385.94) 
 
            per week commencing August 8, 1988 and totalling nineteen 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            thousand two hundred ninety-seven and 00/100 dollars 
 
            ($19,297.00).
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 Defendants shall have credit for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33; claimant's asserted cost attributable to Midlands 
 
            Rehabilitation shall be limited to one hundred fifty and 
 
            00/100 dollars ($150.00).
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            P.O. Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed November 7, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DANIEL FICHTER,     :
 
                      :
 
                 Claimant, :         File No. 879312
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            GRIFFIN PIPE PRODUCTS CO.,    :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Permanent partial disability determined.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CECELIA Y. YOUNG,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 879387
 
            RING KING VISIBLES, :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            UNITED STATES FIDELITY AND,   :
 
            GUARANTY COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            statement of the case
 
            This case came on for hearing on January 24, 1991, in 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for healing period and 
 
            permanent partial disability benefits as a result of an 
 
            alleged injury occurring on January 4, 1988.  The record in 
 
            the proceeding consists of the testimony of claimant, Pam 
 
            Knapp, Janet Bishop, Melanie Gray, Carol Dieckman, Susan 
 
            Baillie, Cindy Doak, and Nancy Nelson; and joint exhibits 1 
 
            through 12, and 14.
 
            issues
 
            The issues for resolution are:
 
            1.  Whether claimant's alleged February 4, 1988 injury arose 
 
            out of and in the course of her employment;
 
            2.  Whether claimant's alleged permanent impairment and 
 
            disability is causally connected to her February 4, 1988 
 
            injury; and,
 
            3.  Whether claimant is entitled to 85.27 medical benefits.  
 
            This issue is as to causal connection only.
 
            FINDINGS OF FACT
 
            Claimant is a 22-year-old high school graduate whose first 
 
            job after high school was with defendant employer in 
 
            September 1986.  Her first position and training was on the 
 
            edge bander machine.
 
            Claimant was off work approximately two weeks from mid-
 
            January through the end of January 1988 due to a 
 
            miscarriage.  Claimant returned to work on February 1, 1988.  
 
            On February 4, 1988, claimant was placed on the cabinet 
 
            building line, which is different from her normal edge 
 
            banding job.  Claimant explained in detail the nature of 
 
            this job which included two people lifting 125 pound 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cabinets off the line and placing them two to ten feet on 
 
            the floor for further finishing.  Claimant estimated she 
 
            helped lift ten per hour.  After her second break, she 
 
            helped lift another cabinet and felt a deep ache in her 
 
            back.  Claimant indicated she wasn't concerned at first.  
 
            She continued working that day and the next day even though 
 
            her back still hurt.  Claimant said she and her sister went 
 
            shopping on February 6, 1988, a Saturday.  Claimant 
 
            testified her pain was deeper and went from her back into 
 
            her right leg and by Sunday she could hardly move.  Claimant 
 
            contends her neighbor, who is defendant employer's foreman, 
 
            came over to claimant's residence and claimant indicated she 
 
            told the foreman her problems and that the pain was caused 
 
            from lifting the cabinets at work.  This neighbor, Susan 
 
            Baillie, did not recall that event nor the conversation that 
 
            allegedly took place and indicated she would have remembered 
 
            it if claimant had told her.
 
            Claimant contends she called her employer on Monday, 
 
            February 8, 1988, after seeing a chirapractor, and told the 
 
            employer she could not work.  Claimant said she was released 
 
            from work on February 12, 1988, but was not to twist or bend 
 
            until February 19, 1988.  Claimant took off work on February 
 
            20, 1988 and returned to work on November 14, 1988.  Upon 
 
            claimant's return to work, she worked four hours per day and 
 
            was not to lift or twist.  Claimant contends the pain is 
 
            still there but that she was better.  Claimant was under the 
 
            care of R.F. Neiman, M.D., a neurologist, during this time.  
 
            Claimant worked up until January 30, 1989.  She contends 
 
            that between November 1988 and this date she was moving 
 
            small cabinets off the line and the twisting would cause her 
 
            back to hurt more.  She received more therapy and returned 
 
            to work again on March 3, 1989.  On this date, she told 
 
            defendant employer she no longer wanted to work at 
 
            defendant's place of business because of her fear of further 
 
            injury.
 
            Claimant then worked eight to nine months at Louis Rich 
 
            Company distributing meat.  She developed tendonitis and 
 
            quit.  She then worked for a data systems company stuffing 
 
            envelopes and doing no lifting.  She said they then put her 
 
            in a heavy lifiting warehouse job and she was unable to do 
 
            this job so she quit on December 8, 1989.
 
            Claimant became pregnant again in January 1990 and had a 
 
            baby girl on October 6, 1990.  Claimant contends she can do 
 
            no lifting.
 
            Claimant related her pre-February 4, 1988 activities as 
 
            including camping, hiking, playing volleyball, skiing, 
 
            swimming, heavy lifting, and performing household chores.  
 
            She said that she is unable to do sport actiivites and her 
 
            other levels of work are very low.  Claimant stated she is 
 
            unable to perform her prior jobs and has pain and numbness 
 
            in her legs and toes.
 
            Claimant acknowledged that her MRI, EMG, CT and x-rays are 
 
            all normal.  Claimant denied she told her coworkers or 
 
            personnel department that she did not hurt herself at work.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant was questioned as to Joint Exhibit 2, whcih 
 
            indicates claimant's pain was gradual and the actual time of 
 
            injury was unknown.  She was referred to her deposition 
 
            where she indicated there was a specific incident causing 
 
            pain.
 
            Pam Knapp, who was working with claimant at the time of the 
 
            alleged February 4, 1988 injury, testified she drives to and 
 
            from work with claimant.  She appeared to be very 
 
            nonresponsive and stubborn and was reluctant to acknowledge 
 
            anything.  She remembered very little and an attempt to 
 
            refresh her memory was very unsuccessful.  It is obvious 
 
            claimant called her to support claimant's testimony that a 
 
            February 4, 1988 injury occurred.  This witness did not 
 
            recall claimant's injury or claimant stating to her that she 
 
            hurt her back.  She admitted they worked together lifting 
 
            cabinets.
 
            Janet Bishop, claimant's aunt by blood with whom she was 
 
            living at the time of the alleged February 4, 1988 injury, 
 
            confirmed claimant's testimony in many respects in which she 
 
            has personal knowledge of claimant's pre and post February 
 
            4, 1988 activities and health.  Claimant had lived with her 
 
            and her husband for one and one-half years prior to this 
 
            February 4, 1988 alleged injury.
 
            Melanie Gray, claimant's mother, testified claimant had no 
 
            back problems prior to February 4, 1988.  She also supported 
 
            claimant's claim of her pain and having back trouble since 
 
            her February 4, 1988 alleged injury.  She said claimant and 
 
            her new baby are now living with her.  She indicated 
 
            claimant does not use a vacuum cleaner and seems to indicate 
 
            claimant cannot do much of anything involving carrying 
 
            groceries, washing clothes or helping with the baby.
 
            The undersigned feels that there was considerable 
 
            exaggeration by claimant's relatives and claimant as to her 
 
            alleged condition.  You would think claimant was close to 
 
            being physically helpless, which the undersigned feels is 
 
            not the real condition of the claimant.
 
            Carol Dieckman, who is defendant employer's current human 
 
            resources assistance, and on February 4, 1988 was the 
 
            personnel secretary, emphasized claimant indicated to her on 
 
            February 8, 1988 that claimant did not hurt her back at 
 
            work.  She said claimant wasn't sure what had happened.
 
            Susan Baillie, claimant's lead person with defendant 
 
            employer as of November 1988 and a fellow employee of 
 
            claimant on February 4, 1988, testified that she did not 
 
            recall claimant being in pain and claimant did not fill out 
 
            an injury form.  She acknowledged claimant was her neighbor 
 
            in February 1988, but she does not remember going to 
 
            claimant's house around February 5th to 7th and does not 
 
            remember claimant telling her she hurt her back at work.  
 
            She emphasized she is sure she would remember this event if 
 
            claimant told her.
 
            Cindy Doak, claimant's lead person on February 4, 1988 and a 
 
            current employee with defendant employer, did not receive an 
 
            injury report from claimant even though she is the one who 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            usually receives such a report.  She said she never saw 
 
            claimant in pain nor did she evidence that claimant was 
 
            injured at work.  After having her memory refreshed, she did 
 
            acknowledge claimant walking in pain upon claimant's return 
 
            to work and claimant told her after February 4, 1988 that 
 
            she hurt her back but did not know how she hurt it.
 
            Nancy Nelson, formerly known as Nancy Lemkau, was defendnt 
 
            employer's personnal manager and workers' compensation 
 
            manager on February 4, 1988.  She is now manager of the 
 
            human resources department at Hon Industries.  She explained 
 
            defendant employer's procedure when a work-related injury is 
 
            reported.  She emphasized a different form than the form 
 
            used on February 8, 1988 (Joint Exhibit 10, page 59), is 
 
            used.  Joint Exhibit 10, page 59, is used whan an alleged 
 
            injury is an illness or accident and not work related.  She 
 
            affirmed Carol Dieckman's recollection that she was told by 
 
            Dieckman that claimant called the offic on February 8, 1988, 
 
            and said she would not be in and that claimant did not know 
 
            how she hurt her back.  Dieckman told Nelson that it was not 
 
            work related and Nelson did nothing further.  Nelson 
 
            emphasized if there was any indication it was work related, 
 
            she would have proceeded differently and would have used a 
 
            different form.
 
            Richard F. Neiman, M.D., a neurologist, testified by way of 
 
            deposition on December 6, 1990, that his first contact with 
 
            claimant was on May 24, 1988.  Claimant was referred to him 
 
            by D.L. Miller, M.D., and Mark Odell, M.D.
 
            Dr. Neiman's history of claimant related claimant treated 
 
            prior to February 4, 1988 with Jeffrey Shay, D.C., for a 
 
            pinched nerve in her back approximately one to one and 
 
            one-half years.  He seemed to later indicate as if the pain 
 
            was one and one-half years before February 4, 1988, and that 
 
            that pain lasted one week.  This was somewhat confusing (Jt. 
 
            Ex. 11, p. 6).  Dr. Neiman did a myelogram, CT scan and an 
 
            EMG study, which were all normal.  The doctor related his 
 
            treatment of the claimant.  He opined claimant had a 5 
 
            percent impairment to her body as a whole in accordance with 
 
            the AMA Guides based on the fact that claimant's pain 
 
            existed over six months .  He causally connected claimant's 
 
            problems to the February 4, 1988 alleged injury.  The doctor 
 
            saw no evidence of any structural or underlying pathology in 
 
            the back.  He opined claimant reached maximum recovery 
 
            sometime in December 1988.
 
            The doctor agreed that the degree of intensity which 
 
            claimant felt pain seemed excessive to him (Jt. Ex. 11, pp. 
 
            27-28).  He acknowledged that since all the tests were 
 
            normal the only thing left for him to be able to diagnosed 
 
            is based on the subjective component of pain (Jt. Ex. 10, p. 
 
            18).  He basically concluded claimant had a lumbosacral 
 
            strain.  He saw no deficiency with claimant's ability to 
 
            flex forward, extend backwards, right lateral flexion and 
 
            left lateral flexion (Jt. Ex. 11, p. 32).
 
            Claimant's medical records reflect claimant went through an 
 
            emotional period in January 1988 when she had a miscarriage.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Dr. Odell's February 29, 1988 medical records show claimant 
 
            was seeing a chiropractor three weeks for back and leg pain 
 
            but did not know how it came on except it came on at work.  
 
            The July 17, 1989 notes of David Reitz, M.D., who is an 
 
            associate of Dr. Odell, at the Muscatine Helath Center, 
 
            reflect that claimant fell on her left side that early 
 
            morning because she was intoxicated (Jt. Ex. 1, p. 11).  It 
 
            appears Dr. Neiman knew nothing of this fall.  Claimant 
 
            denied use of alcoholoc beverages in May 1988 when Dr. 
 
            Neiman took her history (Jt. Ex. 5, p. 6).
 
            Claimant has had a lot of family problems that have 
 
            obviously affected claimant.  She testified to a miscarriage 
 
            just prior to the alleged February 4, 1988 injury, her 
 
            brother attempted suicide in June 1988, and it appears she 
 
            had another pregnancy situation as of February 27, 1989 (Jt. 
 
            Ex. 4, p. 14).  She testified she had a child in October 
 
            1990.
 
            This case has caused great concerns to the undersigned and 
 
            there seems to be very many aspects that raise questions as 
 
            to what really happened and the true consequences of certain 
 
            events.  Although Dr. Neiman concluded a 5 percent 
 
            impairment strictly on subjective complaints, several tests 
 
            were all normal.  Dr. Neiman causally connected claimant's 
 
            current complaints and injuries to the alleged February 4, 
 
            1988 injury but it is obvious he relies strictly on what 
 
            claimant told him as there was no objective evidence to 
 
            determine causation.
 
            The greater weight of evidence shows that claimant did not 
 
            really know what caused her alledged injury.  There is a lot 
 
            of disagreement as to what and when people said certain 
 
            things and how they were interpreted at the time.  The 
 
            employer indicated the medical form used for this incident 
 
            is the form used for a nonoccupational injury or illness.  
 
            Claimant brought a fellow employee, Pam Knapp, to testify as 
 
            to events surrounding the alleged injury.  This witness was 
 
            very obstinate and stubborn and even an attempt to refresh 
 
            her memory was not satisfactory to clear up the doubts she 
 
            left as to whether claimant was, in fact, injured on 
 
            February 4, 1988.
 
            Claimant has the burden to show the injury arose out of and 
 
            in the course of her employment.  The undersigned finds 
 
            claimant has failed in her burden to prove this.
 
            If claimant succeeded in finding an injury arising out of 
 
            and in the course of her employment, she must also prove 
 
            that such an injury caused the condition for which claimant 
 
            suffers and that such condition is causally connected to the 
 
            work injury.  The undersigned also finds claimant has failed 
 
            by the preponderance of the evidence to prove this required 
 
            causal connection.
 
            The undersigned feels sorry for the claimant.  She has had  
 
            family and personal strife in her short life, but sympathy 
 
            is not controlling concerning liability.  There were hard 
 
            and close issues to decide in writing this decision.  The 
 
            undersigned freely admits the closeness of the issues 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            herein.  The demeanor attitude and the nature of the 
 
            witnesses and their response also played a part in deciding 
 
            the close issues in this matter.
 
            conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that she received an injury on February 4, 1988, 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            "An injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while he is doing his work or something 
 
            incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 
 
            278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. 
 
            Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 
 
            352, 154 N.W.2d 128. 
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of February 4, 1988 is causally 
 
            related to the disability on which she now bases her claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128
 
            It is further concluded that:
 
            Claimant's February 4, 1988 alleged injury did not arise out 
 
            of and in the course of her employment.
 
            Claimant's alleged disability and impairment were not caused 
 
            by claimant's alleged February 4, 1988 injury.
 
            Claimant failed to carry her burden of proof.
 
            Claimant takes nothing from these proceedings.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant takes nothing from these proceedings.
 
            That defendants shall pay the costs of this action pursuant 
 
            to rule IAC 343-4.33.
 
            Signed and filed this ____ day of February, 1991.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                      ______________________________
 
                      BERNARD J. O'MALLEY
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr J Nicholas Russo
 
            Attorney at Law
 
            615 Iowa State Bank Bldg
 
            Iowa City IA 52240
 
            
 
            Mr John Stonebraker
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport IA 52809
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108.5
 
                      Filed February 15, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CECELIA Y. YOUNG,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 879387
 
            RING KING VISIBLES, :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            UNITED STATES FIDELITY AND,   :
 
            GUARANTY COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove her injury arose out of and in the 
 
            course of her employment.
 
            
 
            5-1108.5
 
            Claimant failed to prove causal connection between her 
 
            alleged disability and her alleged injury.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CINDY WISEMAN,
 
                                         File No. 879509
 
              Claimant,
 
                                         A R B I T R A T I 0 N
 
         VS.
 
                                         D E C I S I 0 N
 
         IBP, INC.,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Cindy Wiseman, 
 
         claimant, against IBP, Inc., self-insured employer, defendant.  
 
         The case was heard by the undersigned in Storm Lake, Iowa on the 
 
         7th day of August, 1989.
 
         
 
              The record consists of claimant's exhibits 1-9 and 
 
         defendant's exhibits A-K.  The record additionally consists of 
 
         the testimonies of claimant, Tom Henrich, and Leanne Kneifel.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on August 7, 1989, the issues presented by the parties 
 
         are:
 
         
 
              1. Whether the work injury is a cause of permanent 
 
         disability; and,
 
         
 
              2. Whether claimant is entitled to weekly compensation for 
 
         permanent partial disability.
 
         
 
                                   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 October 26, 1987 
 
         which arose out of and in the course of employment with employer 
 
         is stipulated;
 
         
 
         
 
         
 
         WISEMAN V  IBP, INC
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. That the alleged injury is a cause of temporary 
 
         disability during a period of recovery is stipulated;
 
         
 
              4. That the extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendant is 
 
         liable for the injury, is: stipulated to be from March 15, 1988 
 
         though May 3, 1988 and from May 5, 1988 through May 11, 1988 for 
 
         temporary partial disability;
 
         
 
              5. That the commencement date for permanent partial 
 
         disability, in the event such benefits are awarded, is stipulated 
 
         to be the 12th day of May, 1988;
 
         
 
              6. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $236.25 per week; and,
 
         
 
              7. Defendant paid claimant 37.143 weeks of compensation at 
 
         the rate of $236.25 per week and one week at the rate of $117.00 
 
         prior to the hearing.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 28-years-old.  She graduated from high school in 
 
         1979.  Subsequent to graduation, claimant worked as a waitress 
 
         and as a nurse's aide.  Claimant commenced her employment with 
 
         defendant on November 4, 1982.
 
         
 
              As of the date of the injury, claimant was rotating between 
 
         three positions.  Claimant worked the day shift as a pate 
 
         skinner, a snout trimmer and as a cheeker.  These positions were 
 
         all at the head table.
 
         
 
              Claimant testified her arms began aching and she went to the 
 
         nurse's station for aspirin.  After two weeks, claimant testified 
 
         she was sent to W. E. Erps, M.D. and B. J. Vander Kooi, M.D., at 
 
         the Buena Vista Clinic, P.C. Claimant was then referred to James 
 
         A. Johns, M.D. and William Follows, P.C., orthopedic surgeons.
 
         
 
              Medical records indicate the following diagnosis as of 
 
         November 24, 1987, from Dr. Johns:
 
         
 
              On physical examination she has a full active range of 
 
              motion of her cervical spine and both shoulders.  
 
              Impingement [sic] sign is moderately positive, greater on 
 
              the left than on the right.  Apprehension test is negative.  
 
              Impingement [sic] with the shoulder internally rotated and 
 
              flexed is also positive.  There is significant tenderness 
 
              over the area of the coracoid process and CA ligament and 
 
              less marked tenderness over the anterior lateral aspect of 
 
              the acromion.  The AC joint area is nontender an [sic] is 
 
              non mobile.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         WISEMAN V. IBP, INC.
 
         Page 3
 
         
 
         
 
              Biceps resistent [sic] test is minimally positive.  She has 
 
              good rotator cuff strength and that appears to be intact.  
 
              Extremities are neurovascularly intact. Radiographs of the 
 
              left shoulder are unremarkable.  Radiographs of the right 
 
              shoulder are also unremarkable, although there is a small 
 
              ossicle off the cervical spine of the AP view which appears 
 
              to be very old.  Adsons test is negative bilaterally and she 
 
              has good distal pulses.
 
              
 
              Impression: Bilateral impingement [sic] syndrome, left 
 
              slightly greater than right.
 
              
 
              Recommendations; Conservative care program is outlined for 
 
              her to include anti-inflammatory medicines.  Heat and ice 
 
              moda lities [sic] and restricted activity.  I have given her 
 
              Clinoril to try as anti-inflammatory.  Her restrictions 
 
              should include no overhead work, no lifting greater than 10 
 
              pounds and repetitive [sic] activity of her arms and 
 
              shoulder for longer than 30 minutes at a time.  She [sic] 
 
              will return in four weeks to see Dr. Follows.  I have [sic] 
 
              explained to her that steroid injections maybe considered if 
 
              [sic] has no relief.
 
         
 
              Claimant testified she continued her treatment with Dr. 
 
         Follows.  The medical records of Dr. Follows indicate the 
 
         following:
 
         
 
              DATE:  March 14 1988
 
              
 
              She was doing better until she was put back on the kill 
 
              floor, [sic] She is not tolerating that well.  She has a 
 
              positive impingement [sic] sign in both shoulders.  I am 
 
              taking her off work completely for six weeks and then we 
 
              will reevaluate her again.  I have suggested that she may 
 
              want to have a permanent restriction on her shoulders which 
 
              would probably result of [sic] termination of her employment 
 
              with IBP.
 
              
 
              DATE:  April 25, 1988
 
              
 
              She has now been off work for six more weeks.  She is a 
 
              little better but not much.  She still has pain at times.  
 
              Her left shoulder is worse than the right.  Both shoulders 
 
              are tender in the appropriate.spot. We have injected both of 
 
              them and she is going to call us in a week. we are still 
 
              contemplating whether she should look for a new job or try 
 
              to go back to modified job at IBP.
 
         
 
         
 
         WISEMAN V. IBP, INC.
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              cc:  IBP
 
              
 
              DATE:  May 2, 1988
 
              
 
              I told Cindy that she could go back to work if they could 
 
              find.a job with no stress on the shoulders, no reaching, no 
 
              overhead work, etc.  She is going to talk to IBP and they 
 
              may give us a call.
 
              
 
              cc:  IBP
 
              
 
              5/5/88 Cindy called to say she got worse at work yesterday.  
 
              She is trimming meat on the line.  She is going to talk to 
 
              IBP about finding a different job.
 
         
 
              In May of 1988, Dr. Follows provided a functional impairment 
 
         evaluation.  He determined the following: "On the basis of 
 
         bilateral impingement syndrome, I would give her a permanent five 
 
         percent disability in both upper extremities."
 
         
 
              Claimant stated she was terminated by defendant for medical 
 
         reasons in May of 1988.  However, a vocational rehabilitation 
 
         specialist was retained by defendant to assist claimant with 
 
         finding employment.
 
         
 
              Claimant testified she returned to work for defendant on 
 
         August 10, 1988.  Claimant stated she was placed in the quality 
 
         control department where she was hired to inspect pork.  Claimant 
 
         stated she is in a management support position and she started 
 
         the position at $7.45 per hour.  As of March 4, 1989, claimant's 
 
         pay records indicate she was paid at an hourly rate of $8.20 per 
 
         hour.  This rate was paid to her through July 15, 1989.
 
         
 
              Tom Henrich testified for defendant.  He stated he had been 
 
         the quality control manager for the past seven years.  He 
 
         reported he knows claimant.  He stated he is familiar with her 
 
         and with her position as a boneless loin inspector.  Mr. Henrich 
 
         indicated claimant, as an inspector in quality control, receives 
 
         deferred compensation benefits, sick leave, and she has more 
 
         advancement opportunities.  He testified that since 1982, 35 
 
         people have been promoted out of the quality control department.  
 
         Mr. Henrich indicated there is no way claimant could have moved 
 
         up as fast as she has in quality control and that it is 
 
         anticipated claimant will receive a raise to $8.50 per hour on 
 
         November 8, 1989.
 
         
 
              Leanne Kneifel testified she is the workers' compensation 
 
         coordinator.  She stated she managed the workers' compensation 
 
         claims, including claimant's claim.  She reported claimant was 
 
         medically terminated in May of 1988, but that later claimant 
 
         returned to the quality control department.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WISEMAN V  IBP, INC
 
         Page 5
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 26, 1987, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton, 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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WISEMAN V. IBP, INC.
 
         Page 6
 
         
 
         
 
         Degree of industrial disability can in fact be much different 
 
         than the degree of impairment because in the first instance 
 
         reference is to loss of earning capacity and in the latter to 
 
         anatomical or functional abnormality or loss.  Although loss of 
 
         function is to be considered and disability can rarely be found 
 
         without it, it is not so that a degree of industrial disability 
 
         is proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         WISEMAN V. IBP, INC.
 
         Page 7
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to address is whether claimant has sustained 
 
         any permanency as a result of her work injury.  Dr. Follows,.the 
 
         treating physician, assessed a five percent permanent impairment 
 
         to both extremities.  Dr. Follows also placed permanent 
 
         restrictions upon claimant's activities.  She is precluded from 
 
         jobs which place stress on the shoulders, where she is required 
 
         to reach, or where she is required to work overhead.
 
         
 
              After reviewing the medical records, it is the determination 
 
         of the undersigned that claimant sustained a permanent partial 
 
         disability.  Dr. Follows limited the impairment to the upper 
 
         extremities when he provided his impairment rating.  Claimant, 
 
         however, physically demonstrated where she experiences 
 
         difficulties.  She pointed to an area approximately one inch 
 
         below her shoulder.  She also pointed to an area between her neck 
 
         and shoulder.  She noted she felt neck pain and she attributed 
 
         the neck pain to her shoulder injuries.
 
         
 
              It is the decision of the undersigned that claimant 
 
         sustained injuries to her shoulders.  These constitute injuries 
 
         to the body as a whole.  Nazarenus v. Oscar Mayer & Co., II Iowa 
 
         Industrial Commissioner Report 281 (Appeal Decision 1982).  See 
 
         also: Snyder v. Firestone Tire & Rubber Company, (File No. 834049 
 
         Filed October 26, 1987).
 
         
 
              The mere fact that a rating pertains to a scheduled member 
 
         does not mean the disability is restricted to a scheduled member.  
 
         Snyder, supra, citing Pullen v. Brown & Lambrecht Earthmoving, 
 
         Incorporated, II Iowa Industrial Commissioner Report 308 (Appeal 
 
         Decision 1982).
 
         
 
              Dr. Follows, the treating physician, rated claimant as 
 
         aforesaid.  The figure translates to a 6 percent functional 
 
         impairment of the whole person.  See Guides to the Evaluation of 
 
         Permanent Impairment, Third Edition, Alan 1. Engelberg, M.D., 
 
         M.PH., Ed. (1988) However, functional impairment is but one 
 
         factor used to determine industrial disability.  After claimant 
 
         sustained her bilateral impingement syndrome, she was given the 
 
         permanent restrictions previously discussed.
 
         
 
              On May 6, 1988, claimant was terminated due to medical 
 
         reasons.  At that time she was not offered a permanent light duty 
 
         position.  She was not rehired until August 4, 1988.  There were 
 
         12.571 weeks where claimant was unemployed.  There was a loss of 
 
         earnings during this time period attributable to claimant's work 
 
         injuries of October 26, 1987.  There also was a loss of earning 
 
         capacity.  Claimant was under permanent physical restrictions.  
 
         Defendant argues that since claimant received workers' 
 
         compensation and $165.00 per week in unemployment compensation 
 
         for this
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WISEMAN V. IBP, INC.
 
         Page 8
 
         
 
         
 
         time period, there was no loss of earnings.  However, the general 
 
         rule as codified in section 85.38(l) is that payments from 
 
         collateral sources do not satisfy an employer's worker's 
 
         compensation liability.  See: Evans v. Kaser Corporation, 
 
         (Arbitration Decision, File No. 806023, citing, IV Larson 
 
         Workmen's Compensation Law, section 97-51(a).
 
         
 
              Claimant, as of August 4, 1988, was provided with a new 
 
         position at defendant's establishment in Storm Lake, Iowa.  
 
         Claimant was placed in a position where she earned $7.45 per 
 
         hour.  This figure was nearly as much as she made when she worked 
 
         at the head table.  Ninety days after she began her job in 
 
         quality control, claimant was given a raise to $7.70 per hour.  
 
         On May 8, 1989, claimant was again given a raise.  She was 
 
         increased to $8.20 per hour.  It was anticipated claimant would 
 
         receive a raise to $8.50 per hour on November 8, 1989.  The 
 
         vocational rehabilitation specialist, Jo Landholm, opined to a 
 
         reasonable degree of professional certainty that claimant had an 
 
         increased earning capacity as of the date claimant had commenced 
 
         employment in the quality control department.
 
         
 
              Claimant, while permanently restricted with respect to her 
 
         physical activities, testified she had no fear of losing her 
 
         present position.  She indicated she was an employee in good 
 
         standing as of the date of the hearing.  She also indicated she 
 
         had received satisfactory performance reviews.
 
         
 
              From the testimony of Mr. Henrich, it appears claimant now 
 
         has a greater opportunity for career advancement.  It also 
 
         appears claimant has a better opportunity for increased wages.  
 
         If she had stayed as a production line worker, her actual 
 
         earnings would be less per hour than they are now.  In addition, 
 
         it appears from the unrefuted testimony of Mr. Henrich that 
 
         claimant could never advance faster in the company than she is 
 
         presently doing as a management support person.
 
         
 
              Therefore, based upon the foregoing and based upon:
 
         1) the personal observation of claimant; 2) agency expertise; 
 
         (Iowa Administrative Procedures Act 17A.14(s)); and, 3) 
 
         claimant's testimony, the undersigned finds claimant has a 10 
 
         percent industrial disability.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              Finding 1. Claimant sustained a bilateral impingement 
 
         syndrome as a result of a work injury which occurred on October 
 
         26, 1987.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Finding 2. Claimant sustained a functional impairment to the 
 
         body as a whole as a result of the work injury on October 26, 
 
         1987.
 
         
 
         
 
         
 
         WISEMAN V. IBP, INC.
 
         Page 9
 
         
 
         
 
              Finding 3. Claimant sustained permanent restrictions as a 
 
         result of the work injury on October 26, 1987.
 
         
 
              Finding 4. Claimant was terminated by defendant on May 6, 
 
         1988, for medical reasons due to her work injury on October 26, 
 
         1987.
 
         
 
              Finding 5. Claimant sustained a loss of earnings as a result 
 
         of her medical termination on May 6, 1988.
 
         
 
              Finding 6. Claimant sustained a loss of earning capacity as 
 
         a result of her medical termination on May 6, 1988.
 
         
 
              Finding 7. Claimant was rehired by defendant on August 4, 
 
         1988.
 
         
 
              Conclusion A. Claimant has met her burden of proving she has 
 
         a 10 percent permanent partial disability as a result of her 
 
         injury on October 26, 1987.
 
         
 
              Conclusion B. Claimant is entitled to healing period 
 
         benefits from March 15, 1988 to May 3, 1988 and for temporary 
 
         partial disability benefits for the period May 5, 1988 to May 11, 
 
         1988.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant fifty (50) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred thirty-six and 25/100 dollars ($236.25) per 
 
         week as a result of the injury on October 26, 1987.
 
         
 
              Defendant is to pay unto claimant seven (7) weeks of healing 
 
         period benefits at the stipulated rate of two hundred thirty-six 
 
         and 25/100 dollars ($236.25) per week and one (1) week of 
 
         temporary partial disability benefits at the stipulated rate of 
 
         one hundred seventeen and no/100 dollars ($117.00).
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
         
 
         WISEMAN V. IBP, INC.
 
         Page 10
 
         
 
         
 
              Signed and filed this 30th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Mr. LeRoy J. Sturgeon
 
         Attorneys at Law
 
         P 0 Box 1194
 
         Sioux  City  IA  51102
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P 0 Box 515, Dept #41
 
         Sioux City IA 68731
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1804
 
                                         Filed Nov. 30, 1989
 
                                         MICHELLE A. McGOVERN
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CINDY WISEMAN,
 
         
 
              Claimant,                  File No. 879509
 
         
 
         vs.                             A R B I T R A T I O N
 
         
 
         IBP, INC.,                      D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         5-1804
 
         
 
              Claimant awarded a 10 percent permanent partial disability 
 
         as a result of a bilateral impingement syndrome.  Claimant was 
 
         terminated for medical reasons by defendant.  Later claimant was 
 
         rehired as a management support worker.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLES SHIVES,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 879525
 
            FARMLAND INDUSTRIES,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY, :
 
                      :
 
                 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 
 
            filed May 22, 1990 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            P.O. Box 1588
 
            Council Bluffs, Iowa 51502
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 12, 1991
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLES SHIVES,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 879525
 
            FARMLAND INDUSTRIES,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 22, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES SHIVES,
 
         
 
              Claimant,                                File No. 879525
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         FARMLAND INDUSTRIES,                          D E C I S I O N
 
         
 
               Employer,
 
                                                          F I L E D
 
         and
 
                                                         MAY 22 
 
         1990
 
         AETNA CASUALTY & SURETY,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Charles 
 
         Shives, claimant, against Farmland Industries, employer 
 
         (hereinafter referred to as Farmland), and Aetna Casualty & 
 
         Surety Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on January 
 
         29, 1988.  On January 26, 1990, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  An employee-employer relationship existed between 
 
         claimant and Farmland at the time of the alleged injury.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from March 14, 1988 through September 2, 
 
         1988 and defendants agree that he was not working during this 
 
         time.
 
         
 
              3.  If permanent disability benefits are awarded, they shall 
 
         begin as of September 3, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $344.18.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
              
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability; and,
 
              
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant, age 31, testified that he worked for Farmland as a 
 
         laborer in a meat processing plant most of his adult life 
 
         beginning soon after his graduation from high school in September 
 
         1978.  Claimant last worked for Farmland in March 1988 except for 
 
         a brief time in September 1989 when he made an unsuccessful 
 
         attempt to return to work.  Claimant said that he averaged 47 
 
         hours a week and his attendance was good until 1986.  Claimant 
 
         said that he was regularly exposed to a cold, wet environment in 
 
         the plant which was purposely kept at a temperature below 45 
 
         degrees.  Claimant and his wife testified that claimant would 
 
         regularly return home in wet clothing due to the steam and water 
 
         cleaning operations being conducted during his shift.
 
         
 
              Claimant has complaints of pain and functional loss 
 
         involving many portions of his body.  Since November 1986, 
 
         claimant has received treatment in the form of medication and 
 
         physical therapy for upper and lower back pain.  Treating 
 
         physicians at the time diagnosed degenerative disc disease and 
 
         chronic ligamentous cervical pain.  Robert Hacker, M.D., opined 
 
         that claimant's back difficulties at the time were chronic and 
 
         claimant would likely have pain for years to come.  Claimant 
 
         testified that none of the physicians at the time discussed the 
 
         possibility that his problems were work related.
 
         
 
              In December 1987, claimant sought treatment for swelling of 
 
         his fingers of his right hand beginning in October 1987.  Upon a 
 
         diagnoses of arthritis, claimant was eventually referred to 
 
         rheumatologist, David Jasper, M.D., in February 1988, upon 
 
         additional complaints of swelling in his left knee and ankles.  
 
         Dr. Jasper diagnosed rheumatoid arthritis and thoracic and lumbar 
 
         back strain.  Dr. Jasper continued to treat claimant over the 
 
         next year but eventually concluded in September 1988 that 
 
         claimant was not going to recover and recommended that he not 
 
         return to work at Farmland due to the cold, wet environment and 
 
         the physical demands of meat cutting work.  Dr. Jasper rates 
 
         claimant as having a 15 percent permanent partial impairment to 
 
         the body as a whole due to the arthritis condition.  
 
         Unfortunately, Dr. Jasper was not specific as to which parts of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the body were involved in his rating process.  At the request of 
 
         defendants, claimant was also evaluated by another 
 
         rheumatologist, Steven J. Wees, M.D., who questioned Dr. Jasper's 
 
         diagnoses of rheumatoid arthritis as opposed to osteoarthritis.  
 
         He felt that claimant's back problems were musculoligamentous in 
 
         origin and suspected its persistence since 1986 to be the result 
 
         of psychological factors.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              With reference to causation, Dr. Wees felt that claimant's 
 
         arthritis was not work related but felt that claimant might have 
 
         aggravated his underlying condition at work.  He also felt that 
 
         it was conceivable that the back problems would be induced by 
 
         work but expressed no opinion as he was uncertain as to 
 
         claimant's job duties at Farmland.  Dr. Wees also found no 
 
         permanent partial impairment.
 
         
 
              On March 18, 1988, Dr. Jasper stated as follows with 
 
         reference to causation:
 
         
 
              We feel that the patient's problem started at work in the 
 
              cold environment and it is likely, from what we have seen so 
 
              far, that he may have to change his occupation with the 
 
              company to get him out of the cold environment.
 
         
 
         A month later Dr. Jasper stated as follows:
 
         
 
              It would be difficult to say that the patient's work caused 
 
              his condition but I believe the physical activity and cold 
 
              environment certainly aggravates his condition and 
 
              cumulative or repetitive trauma may also aggravate his 
 
              condition.
 
         
 
              Claimant testified that nothing in particular happened on 
 
         January 29, 1988.  He stated that it was approximately at this 
 
         time that he was referred to Dr. Jasper who first informed him of 
 
         the possibility that his problems might be work related.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955). An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury. Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity. However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101  N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony maybe coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the preponderance of the evidence 
 
         shows two diagnosed conditions operating to generate claimant's 
 
         pain symptoms, namely:  arthritis of the right hand, left knee 
 
         and ankles and musculoligamentous or soft tissue chronic strain 
 
         of the upper and lower back.  The undersigned does not believe 
 
         that any physician, including Dr. Jasper, has diagnosed that 
 
         claimant's back problems are also arthritic in nature.  The 
 
         original treating physician in 1986 diagnosed degenerate disc 
 
         disease.
 
         
 
              With reference to causation, Dr. Jasper's views are given 
 
         greater weight as he was the primary treating physician.  There 
 
         is little question that claimant suffers from permanent partial 
 
         impairment due to his arthritis and back conditions.  These 
 
         conditions have also compelled him to leave his employment at 
 
         Farmland.  The question is whether this permanent impairment and 
 
         disability is the result of claimant's work or the result of a 
 
         preexisting, underlying disease which progressively worsened 
 
         independent of his employment.
 
         
 
              On the issue of permanency, Dr. Jasper's views are 
 
         equivocal. What appears to be a clear causal connection opinion 
 
         that the underlying arthritis was the result of claimant's work 
 
         in March 1988 was followed in April 1988 with an expressed 
 
         opinion that the work only aggravated the condition.  
 
         Unfortunately, Dr. Jasper failed to explain in any subsequent 
 
         correspondence whether this work related aggravation to which he 
 
         was referring was temporary or permanent in nature.  Left 
 
         unanswered by Dr. Jasper's views is whether or not the arthritis 
 
         was accelerated, lighted up or worsened by claimant's work at 
 
         Farmland.  Claimant's medical history indicates that it is just 
 
         as possible that the condition progressed independent of his work 
 
         and that the work only aggravated his symptoms without actually 
 
         changing the underlying progressive disease process.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Therefore, the most that can be concluded from Dr. Jasper's 
 
         remarks is that the aggravation was at least temporary.  In other 
 
         words, the condition may or may not have progressively worsened 
 
         over time due to claimant's work at Farmland.  His condition 
 
         clearly progressed to a point in March 1988, that compelled 
 
         claimant to leave his employment.  The question as to what role 
 
         claimant's work played in this progression is unclear.
 
         
 
              As set forth above, claimant has the burden of proof.  Any 
 
         lack of evidence operates against claimant.  In this case, the 
 
         undersigned is unable to make a finding as to the cause of 
 
         claimant's underlying permanent condition.  Therefore, claimant 
 
         has only established a causal connection between the work injury 
 
         and temporary aggravation.
 
         
 
              Therefore, claimant is entitled to temporary total 
 
         disability benefits under Iowa Code section 85.33(1) for the 
 
         times off work until claimant reached maximum improvement in 
 
         September 1988, the time when Dr. Jasper finally concluded that 
 
         claimant would not improve.  According to the prehearing report, 
 
         over 60 weeks of weekly benefits have been paid to claimant.  
 
         Claimant has not shown entitlement to more weekly benefits than 
 
         those he has already received.
 
         
 
              Although claimant was unsuccessful in this proceeding, he 
 
         appeared truthful at hearing and his claim was fairly debatable. 
 
         Claimant will be awarded costs.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On January 29, 1988, claimant suffered an injury to the 
 
         right hand, left knee and ankles and upper and lower back which 
 
         arose out of and in the course of his employment with Farmland. 
 
         This injury was a gradual accumulative temporary aggravation of 
 
         an underlying arthritis or musculoskeletal chronic pain process 
 
         due to meat packing work and the performance of such work in a 
 
         cold and wet environment.
 
         
 
              2.  The work injury of January 29, 1988, was a cause of a 
 
         period of disability from work beginning on March 14, 1988 and 
 
         ending on September 2, 1988, at which time claimant reached 
 
         maximum healing.  During this time, claimant received extensive 
 
         treatment of the work injury consisting of limitations on 
 
         activity, medications for pain and inflammation and physical 
 
         therapy.
 
         
 
              3.  Claimant failed to show by a preponderance of the 
 
         evidence that the work injury of January 29, 1988, or any of 
 
         claimant's work at Farmland, was a cause of permanent partial 
 
         physical impairment, or permanent disability.  Although claimant 
 
         clearly, has such permanent disability, its causal connection to 
 
         the work injury was simply not shown by the greater weight of the 
 
         evidence.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established under law entitlement to 
 
         additional workers' compensation benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's petition is dismissed.
 
              
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
              
 
              3.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Ave
 
         P 0 Box 1588
 
         Council Bluffs, IA  51502
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St, Suite 200
 
         P 0 Box 3086
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed May 22, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES SHIVES,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 879525
 
         FARMLAND INDUSTRIES,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803 - Nonprecedential
 
         
 
              Extent of permanent disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DUANE FRANCIS KIESECKER, JR., 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 879613
 
            WEBSTER CITY CUSTOM MEATS,    
 
            INC.,                                 A P P E A L
 
                      
 
                 Employer,                      D E C I S I O N
 
                      
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE CO., 
 
                      
 
                 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 
 
            filed September 20, 1990 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant raises fifteen issues on appeal.  Claimant urges 
 
            that his compensation for functional loss of use be based on 
 
            his own subjective estimate of the extent of his impairment, 
 
            and that the opinion of the physician, who relied on the AMA 
 
            Guides to the Evaluation of Permanent Impairment, be 
 
            rejected.  Claimant does not have medical training.  The 
 
            opinion of the physician will be given greater weight. 
 
            Claimant's arguments as to the calculation of interest under 
 
            Iowa Code section 85.30 are convoluted and unduly technical.  
 
            The parties are directed to calculate interest on any weekly 
 
            benefits not paid when due based on Iowa Code section 85.30 
 
            and if further intervention by this agency is needed to 
 
            resolve any dispute as to such calculations, the parties are 
 
            warned in advance of the possibility that a certified public 
 
            accountant may be retained as an expert and the cost thereof 
 
            assessed to one or several parties as may seem just.  See 
 
            Simonson v. Snap-On Tools, Arbitration Decision, January 
 
            31, 1991; Meyers v. Holiday Express Corp., Appeal Decision, 
 
            March 24, 1992; Terwilliger v. Snap-On Tools Corp., Appeal 
 
            Decision, May 24, 1991.
 
            Many of the issues raised by claimant on appeal concern the 
 
            imposition of penalty benefits under Iowa Code section 86.13 
 
            for unreasonable failure to pay benefits.  The decision of 
 
            the deputy in regards to the imposition of penalty benefits 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            is appropriate for the conduct of defendants, and further 
 
            penalty benefits will not be awarded.  
 
            The remainder of claimant's issues on appeal are also 
 
            without merit.  
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript.  Defendants shall pay 
 
            all other costs.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                  ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State St.
 
            Algona, Iowa 50511
 
            
 
            Mr. Tito Trevino
 
            Mr. Peter J. Leehey
 
            Attorneys at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
             
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                              9999
 
                                              Filed November 10, 1992
 
                                              Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DUANE FRANCIS KIESECKER, JR., 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 879613
 
            WEBSTER CITY CUSTOM MEATS,    
 
            INC.,                                  A P P E A L
 
                      
 
                 Employer,                       D E C I S I O N
 
                      
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE CO., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed September 20, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            DUANE FRANCIS KIESECKER, JR.,   :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 879613
 
            WEBSTER CITY CUSTOM MEATS, INC.,:
 
                                            :    A R B I T R A T I O N
 
                 Employer,                  :
 
                                                    D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE CO.,   :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Duane 
 
            Francis Kiesecker, Jr., claimant, against Webster City 
 
            Custom Meats, Inc., employer (hereinafter referred to as 
 
            Custom Meats), and Liberty Mutual Insurance Company, insur
 
            ance carrier, defendants, for workers' compensation benefits 
 
            as a result of an alleged injury on November 27, 1987.  On 
 
            July 19, 1990, a hearing was held on claimant's petition and 
 
            the matter was considered fully submitted at the close of 
 
            this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Custom Meats at the time of the alleged injury.
 
            
 
                 2.  Claimant received a cumulative trauma injury which 
 
            arose out of and in the course of employment with Custom 
 
            Meats.  Only the date of injury is in dispute.
 
            
 
                 3.  It was agreed that claimant was off work and enti
 
            tled to healing period benefits from February 25, 1988 
 
            through April 10, 1988 and from April 19, 1988 through May 
 
            31, 1988.  Claimant is seeking additional healing period 
 
            benefits for times off work outside of these time periods.
 
            
 
                 4.  The injury is a cause of permanent disability and 
 
            the type of disability is a scheduled member disability to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            both legs caused by a single accident compensable under Iowa 
 
            Code section 85.32(2)(s).
 
            
 
                 5.  If permanent disability benefits are awarded, they 
 
            shall begin as of April 11, 1988, with a suspension during 
 
            the healing period of April 19, 1988 through May 31, 1988 
 
            and a recommencement of such benefits on June 1, 1988.
 
            
 
                 6.  Claimant's gross rate of weekly compensation in the 
 
            event of an award of weekly benefits from this proceeding 
 
            shall be $341.42 per week and it was agreed that claimant 
 
            was married at the time of the injury.  The number of exemp
 
            tions is in dispute.
 
            
 
                 7.  The disputed medical bills submitted by claimant at 
 
            hearing were fair and reasonable but their causal connection 
 
            to a work injury remained in dispute.  Defendants agreed at 
 
            hearing to voluntarily pay the transportation expenses 
 
            listed in the prehearing report.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  On what day did claimant suffer his cumulative 
 
            trauma to his legs arising out of and in the course of 
 
            employment;
 
            
 
                  II.  The extent of claimant's entitlement to healing 
 
            period, temporary partial disability and permanent partial 
 
            disability benefits;
 
            
 
                 III.  Claimant's rate of compensation;
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                   V.  The extent of claimant's entitlement to penalty 
 
            benefits under Iowa Code section 86.13(4) and to interest on 
 
            compensation benefits awarded.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, this deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during the 
 
            hearing as to the nature and extent of the injury and dis
 
            ability.  From his demeanor while testifying, claimant is 
 
            found credible.  Similarly, all other witnesses testifying 
 
            were likewise found credible, including witnesses offered by 
 
            the defense.
 
            
 
                 Claimant worked for Custom Meats from September 1986 
 
            until his discharge on April 13, 1988.  At the time of the 
 
            work injury, claimant was working on the line in Pak Off.  
 
            This job involved a considerable amount of heavy lifting 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            along with pushing and pulling of a meat cart.  After the 
 
            work injury, claimant was transferred to the boning line.  A 
 
            dispute developed in April of 1988 when claimant did not 
 
            receive the wage rate (an extra $.50 per hour) he felt was 
 
            due him as a boner and claimant was discharged for refusing 
 
            to work without receiving the higher wage.  Based upon 
 
            claimant's testimony, this dispute and the eventual dis
 
            charge was not connected to claimant's work injury or any 
 
            disability resulting from the work injury.
 
            
 
                 On November 27, 1987, claimant received a cumulative 
 
            trauma injury to both of his knees.  This injury was diag
 
            nosed as bilateral chondromalacia.  Claimant's work at 
 
            Custom Meats aggravated a preexisting congenital predisposi
 
            tion to suffer this injury to his knees.  However, this con
 
            dition was latent and not symptomatic prior to claimant's 
 
            work at Custom Meats.  The date of injury chosen in this 
 
            case was the time when the condition and pain worsened to 
 
            the point that claimant sought medical treatment.  The 
 
            causal connection finding is based upon the uncontroverted 
 
            views of the only treating orthopedic surgeon, Robert 
 
            Gitchell, M.D.
 
            
 
                 Dr. Gitchell treated claimant's knees for approximately 
 
            six months after referral from a company doctor whose con
 
            servative care failed to alleviate claimant's symptoms of 
 
            pain and swelling.  The treatment consisted of exercises, 
 
            medication and eventually surgery on both knees.  Upon the 
 
            advice of Dr. Gitchell, claimant was transferred to the bon
 
            ing line in December of 1987 where he would not be required 
 
            to push and pull the cart or perform repetitive heavy lift
 
            ing.  In addition to the times off work stipulated to in the 
 
            prehearing report, claimant was off work to attend doctor's 
 
            appointments in connection with the treatment of his work 
 
            injury for two hours on November 27, 1987 and two hours on 
 
            December 7, 1987 and for eight hours on December 14, 1987 
 
            and again on February 19, 1988.  After his termination on 
 
            April 13, 1988, claimant was to remain off work for five 
 
            days prior to the surgery due to the work injury.  This was 
 
            the uncontroverted opinion of Dr. Gitchell who felt that 
 
            claimant should be off work during this time.  Claimant 
 
            underwent a six week recovery period and was released to 
 
            return to work on May 31, 1988, again according to the 
 
            uncontroverted views of Dr. Gitchell.  There was some dis
 
            pute in the testimony at hearing as to whether claimant's 
 
            doctor appointments were during or after work hours.  
 
            However, the finding is based upon claimant's credible 
 
            testimony and the fact that defendants admitted in prehear
 
            ing answers to interrogatories that claimant was off work 
 
            during those dates to attend doctor appointments.
 
            
 
                 Although it was felt initially that claimant would not 
 
            suffer any permanency following recovery from the surgeries, 
 
            claimant has suffered an eight percent permanent partial 
 
            impairment to the body as a whole as a result of the aggra
 
            vation of the preexisting knee conditions.  This was the 
 
            uncontroverted view of Dr. Gitchell when claimant continued 
 
            to suffer symptoms of locking up, pain and swelling follow
 
            ing the surgeries.  Claimant continues to suffer from this 
 
            impairment today and must severely limit his work and recre
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            ational activities.  At the time of the hearing, claimant 
 
            was working as a brick tender carrying bricks and blocks on 
 
            scaffolding.  Claimant states that this work is difficult 
 
            for him to perform.
 
            
 
                 Claimant alleges that he suffers from a greater per
 
            centage of impairment or loss of use then opined by Dr. 
 
            Gitchell due to pain and other subjective complaints.  
 
            Unfortunately, claimant has no other expert opinions to back 
 
            up his views.  It would appear that Dr. Gitchell is in the 
 
            most objective position to rate claimant's impairment.  
 
            Also, Dr. Gitchell used a well recognized objective evalua
 
            tion guide from the American Medical Association to rate 
 
            that impairment.  The undersigned declines to apply some 
 
            sort of agency expertise to second guess the views of Dr. 
 
            Gitchell.
 
            
 
                 It could not be found that claimant suffered a partial 
 
            reduction in earning ability as a result of the transfer to 
 
            the boning line.  Admittedly, claimant's weekly earnings 
 
            appear to diminish after the transfer as a result of reduced 
 
            hours but Custom Meats managers explain that this was a 
 
            plant-wide seasonal reduction in hours.  Claimant, in his 
 
            rebuttal testimony, testified that Pak Off, the line from 
 
            which he had been transferred, had a different slow season 
 
            and in his opinion Pak Off was working more hours than 
 
            employees in the boning line after he was transferred.  This 
 
            testimony, however, does not change the fact that claimant's 
 
            reduced hours were seasonal. Had claimant remained employed 
 
            at Custom Meats, the boning department's slow season would 
 
            have ended and claimant would then have worked more hours 
 
            than Pak Off during Pak Off's slow season.
 
            
 
                 It is found that claimant did experience an unreason
 
            able 90 day delay in payment of permanent partial disability 
 
            benefits.  Pursuant to inquiry by claimant's attorney, Dr. 
 
            Gitchell changed his original view and rated claimant as 
 
            suffering from the permanent partial impairment set forth 
 
            above.  This opinion was rendered on February 11, 1990.  
 
            After further inquiry from defense counsel, Dr. Gitchell 
 
            explained on February 8, 1990 to defense counsel that this 
 
            permanent partial impairment was due to claimant's work and 
 
            not due to the preexisting condition.  No other expert opin
 
            ion was rendered in this case.  However, claimant was not 
 
            paid any permanent partial disability benefits until May 8, 
 
            1990, approximately three months after Dr. Gitchell's last 
 
            letter to defense counsel.  No excuse was offered for this 
 
            delay in payment.
 
            
 
                 It could not be found that defendants were unreasonable 
 
            in calculating claimant's rate of compensation as asserted 
 
            by claimant.  Claimant's earnings were very erratic during 
 
            his employment at Custom Meats and the law simply is not 
 
            that clear on how gross earnings should be calculated.  The 
 
            rate arrived at initially by defendants was $155.62 and this 
 
            appears to have at least some arguable basis in fact given 
 
            claimant's earnings.
 
            
 
                 It is found that claimant received treatment from G. B. 
 
            Hogenson on March 16, 1990, which was reasonable and neces
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            sary treatment of claimant's continuing symptoms from the 
 
            work injury of November 27, 1987.  This finding is based 
 
            upon the uncontroverted testimony of claimant at hearing.  
 
            
 
                 It could not be found that claimant is in need of medi
 
            cal treatment for mental depression or that this need was 
 
            causally related to the work injury.  No evidence was 
 
            offered by claimant with reference to such issues.
 
            
 
                 Finally, it is found that claimant had three dependents 
 
            in addition to himself at the time of the injury of November 
 
            27, 1987.  This finding is based upon claimant's uncontro
 
            verted testimony at hearing.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, it was stipulated by the par
 
            ties that claimant suffered a cumulative trauma injury.  It 
 
            is not necessary that claimant prove his disability results 
 
            from a sudden unexpected traumatic event.  It is sufficient 
 
            to show that the disability developed gradually or progres
 
            sively from work activity over a period of time.  McKeever 
 
            Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
            McKeever court also held that the date of injury in gradual 
 
            injury cases is the time when pain prevents the employee 
 
            from continuing to work.  In McKeever the injury date coin
 
            cided with the time claimant was finally compelled to give 
 
            up his job.
 
            
 
                 Claimant, in this case, did not leave his employment 
 
            due to his work injury.  Therefore, the last day worked can
 
            not be used as the injury date under the McKeever doctrine.  
 
            The next most logical injury date would be the one alleged 
 
            in the petition - that is the time when claimant's condition 
 
            worsened to the point that he sought treatment.  Regardless, 
 
            given the stipulation of the parties as to the rate of com
 
            pensation and due to the lack of a statute of limitations 
 
            defense, the date of injury appears to be a rather unimpor
 
            tant issue in this case.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or unsched
 
            uled.  A specific scheduled disability is evaluated by the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            functional method; the industrial method is used to evaluate 
 
            an unscheduled disability.  Martin v. Skelly Oil Co., 252 
 
            Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When the 
 
            result of an injury is loss to a scheduled member, the com
 
            pensation payable is limited to that set forth in the appro
 
            priate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered an eight percent permanent partial impairment or loss 
 
            of use to his body as a whole as a result of the work 
 
            injury.  It was stipulated that this loss was from a single 
 
            accident.  Based upon such a finding, claimant is entitled 
 
            as a matter of law to 40 weeks of permanent partial disabil
 
            ity benefits under Iowa Code section 85.34(2)(s) which is 
 
            eight percent of 500 weeks, the maximum allowable for an 
 
            injury in that subsection.  It has been held that although 
 
            compensation is awarded on the basis of impairment to the 
 
            body as a whole that the award of benefits shall be on a 
 
            functional rather than an industrial basis under that sub
 
            section.  Simbro, 332 N.W.2d 886 (Iowa 1983).
 
            
 
                 Claimant is also entitled to weekly benefits for heal
 
            ing period under Iowa Code section 85.34(1) from the date of 
 
            injury until he returns to work; until he is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.
 
            
 
                 In addition to the periods of time stipulated, claimant 
 
            is entitled to healing period benefits for the two and one 
 
            half days he was off work to attend doctors' appointments 
 
            and for the five days he was off work prior to his surgery.
 
            
 
                 Due to the lack of a finding that claimant suffered a 
 
            loss of earning ability in the transfer to the boning line, 
 
            claimant has not shown entitlement to temporary partial dis
 
            ability under Iowa Code section 85.33(2).
 
            
 
                 III.  With reference to claimant's rate of compensa
 
            tion, it was found that claimant was entitled to four exemp
 
            tions at the time of injury.  Given the stipulation as to 
 
            claimant's gross weekly rate of compensation and marital 
 
            status, claimant's rate of compensation, according to the 
 
            commissioner's rate booklet for an injury on November 27, 
 
            1987, is $226.33 per week.
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order of reimbursement only if claimant has paid those 
 
            expenses.  Otherwise, claimant is entitled to only an order 
 
            directing the responsible defendants to make such payments.  
 
            Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the only disputed doctor's bill was 
 
            found causally connected to the injury and payment will be 
 
            ordered.  However, claimant failed to offer any evidence 
 
            that he suffers from treatable mental depression causally 
 
            connected to the injury.
 
            
 
                   V.  It was found that defendants acted unreasonably 
 
            in failing to pay permanent partial disability benefits for 
 
            90 days after the last letter of clarification by Dr. 
 
            Gitchell.  Penalty benefits can be awarded up to a maximum 
 
            of the 50 percent of the amounts withheld.  Iowa Code sec
 
            tion 86.13 (unnumbered paragraph four).  However, this is 
 
            not a case where the maximum penalty is appropriate.  Defen
 
            dants are sufficiently penalized by the payment to claimant 
 
            of an additional sum of $500.00 for the delay in addition to 
 
            payment of the interest on those benefits.
 
            
 
                 With reference to interest, all weekly benefits awarded 
 
            will accrue interest from the date they were due pursuant to 
 
            Iowa Code section 85.30.  Permanent partial disability bene
 
            fits will accrue interest from the date that the healing 
 
            period ended.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  
 
            It was stipulated that healing period ended and permanent 
 
            partial disability benefits are to begin as of April 11, 
 
            1987, with a suspension during the additional healing period 
 
            of April 19, 1988 through May 31, 1988.  This additional 
 
            healing period was expanded in this decision to run from the 
 
            date of termination April 13, 1988 through May 31, 1988.
 
            
 
                 No penalty or interest can be awarded as a result of 
 
            any unalleged, unreasonable delay in paying medical bene
 
            fits.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 
 
            1986).
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant forty (40) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred twenty-six and 33/l00 dollars ($226.33) per week 
 
            from April 11, 1988, except for the healing period from 
 
            April 13, 1988 through May 31, 1988.  Such benefits shall be 
 
            recommenced then on June 1, 1988.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits for the following periods of time at the rate of 
 
            two hundred twenty-six and 33/l00 dollars ($226.33) per 
 
            week:  two (2) hours on November 27, 1987; two (2) hours on 
 
            December 7, 1987; eight (8) hours on December 14, 1987; 
 
            eight (8) hours on February 19, 1988; during the period from  
 
            February 25, 1988 through April 10, 1988; five (5) days from 
 
            April 14, 1988 through April 18, 1988; and, during the 
 
            period from April 19, 1988 through May 31, 1988.
 
            
 
                 3.  Defendants shall pay the medical expenses of G. B. 
 
            Hogenson in the amount of forty-six and no/l00 dollars 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            ($46.00).  Claimant shall be reimbursed if he has paid that 
 
            expense.  Otherwise, defendants are ordered to pay the 
 
            provider directly along with any lawful late payment penal
 
            ties imposed on the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            weekly benefits previously paid.
 
            
 
                 5.  Defendants shall pay statutory interest on weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30 from the date they are due.  Permanent partial dis
 
            ability benefits will be paid from April 11, 1988, with a 
 
            suspension for the healing period from April 13, 1988 
 
            through May 31, 1988, with a recommencement of those bene
 
            fits on June 1, 1988.
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33 as 
 
            set forth by Attorney Soldat in paragraph D of his prehear
 
            ing report attachment, including reimbursement to claimant 
 
            for the filing fee paid by him.
 
            
 
                 7.  Defendants shall pay a lump sum amount of five 
 
            hundred and no/l00 dollars ($500.00) to claimant for an 
 
            unreasonable ninety (90) day delay in payment of permanent 
 
            partial disability benefits.
 
            
 
                 8.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State St
 
            Algona  IA  50511
 
            
 
            Mr. Tito Trevino
 
            Mr. Peter J. Leehey
 
            Attorneys at Law
 
            P O Box 1680
 
            Fort Dodge  IA  50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1801.1; 4000.2
 
                                               Filed September 20, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            DUANE FRANCIS KIESECKER, JR.,   :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 879613
 
            WEBSTER CITY CUSTOM MEATS, INC.,:
 
                                            :    A R B I T R A T I O N
 
                 Employer,                  :
 
                                                    D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE CO.,   :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
            1801.1 - TTD Benefits
 
            
 
                 Although claimant was transferred to a different 
 
            assembly line due to his work injury after which he suffered 
 
            a reduction in hours, this reduction was found to be 
 
            seasonal and any loss of hours would have been made up in 
 
            the long term had he remained employed.  Claimant's 
 
            termination from employment was not deemed work related.  
 
            Claimant was transferred from a line which also had a 
 
            seasonal low period.
 
            
 
            4000.2 - Penalty
 
            
 
                 A 90 day delay in payment of over $8,000 in scheduled 
 
            member permanent partial disability benefits was found 
 
            unreasonable when there was no excuse offered and no 
 
            contrary expert opinion offered other than the treating 
 
            orthopedic surgeon.  Defendants were ordered to pay an extra 
 
            $500 to claimant in addition to interest on the permanent 
 
            disability amounts.