BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JOSEPH D. NICOLINO,
 
                                         File No. 881038
 
              Claimant
 
                                         A R B I T R A T I O N
 
         VS.
 
         
 
         CITY OF DES MOINES,             D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joseph D. 
 
         Nicolino, claimant, against the City of Des. Moines, a 
 
         self-insured employer, defendant, for workers' compensation 
 
         benefits as a result of an alleged injury on December 28, 1987.  
 
         On June 2, 1987, 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.  On December 28, 1987, claimant received an injury which 
 
         arose out of and in the course of employment with the City of Des 
 
         Moines.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits only for the time period extending from 
 
         March 1, 1988.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $257.79.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 2
 
         
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
              At hearing the parties indicated in the prehearing report 
 
         that the issue of claimant's entitlement to medical benefits was 
 
         no longer in dispute.
 
         
 
                              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 should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant, age 39, testified that he worked for the City from 
 
         August 1975 until March 1988.  At the time of the alleged injury 
 
         herein, December 28, 1987, he was a truck driver in the forestry 
 
         department.  Claimant said that if he were working in this job 
 
         today, he would be earning from $11.00 to $11.50 per hour along 
 
         with a full range of fringe benefits including retirement, sick 
 
         leave, compensatory time and paid vacation.
 
         
 
              On December 28, 1987, claimant suffered a work injury while 
 
         working for the City on the first day back from an extended leave 
 
         following another work injury.  Claimant testified that at this 
 
         time he felt neck pain radiating down into his arm after pulling 
 
         tree branches out of a ditch.  Claimant said that he told two 
 
         co-workers of the problem but felt that the pain would subside.  
 
         He was seen in the employee health clinic following this incident 
 
         but continued to work in the forestry department.  Claimant 
 
         testified that pain also began to develop in the low back a few 
 
         days later.  Claimant was then seen a couple of times by James 
 
         Blessman, M.D., the city doctor at the employee health clinic, 
 
         who prescribed pain and anti-inflammatory medication.  Finally, 
 
         on March 1, 1988, claimant was referred by Dr. Blessman to Thomas 
 
         Carlstrom, M.D., an orthopedic surgeon, due to claimant's 
 
         continuing symptoms.  Claimant testified that Dr. Carlstrom, who 
 
         had treated claimant for a prior neck  injury, stated that he had 
 
         never released claimant to return to work on December 28, 1987.  
 
         Dr. Carlstrom then took claimant off work until March  15, 1988, 
 
         at which time he released
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 3
 
         
 
         
 
         claimant to return to work but only with permanent activity 
 
         restrictions against lifting from the floor to the waist over 20 
 
         pounds, repetitive lifting, shoveling, pushing or pulling over 40 
 
         pounds and reaching or lifting above shoulders.
 
         
 
              After the work injury in this case, claimant and the City 
 
         of, Des Moines entered into a compromise settlement agreement on 
 
         March 2, 1988.  In this agreement both parties agreed that 
 
         claimant suffered a prior work injury on January 2, 1985 and 
 
         settled the issue of claimant's entitlement to disability 
 
         benefits brought about by that injury.  At the time of the 
 
         January 2, 1985 injury, claimant was working in the parks 
 
         department shop performing cement, carpentry and plumbing work.  
 
         According to the records attached to the settlement papers 
 
         submitted to this agency and claimant's testimony, claimant 
 
         injured his neck and arm while pulling  a chain link fence.  
 
         Claimant was treated for this injury by Dr. Carlstrom and Dr. 
 
         Bakoty (first name unknown).  Pursuant to this settlement 
 
         agreement, claimant was paid healing period benefits and was 
 
         entitled to 100 weeks of compensation benefits for a 20 percent 
 
         permanent partial "impairment" to the body as a whole.
 
         
 
              Claimant testified at the hearing in this proceeding that 
 
         the restrictions imposed by Dr. Carlstrom in March of 1988 were 
 
         the same restrictions imposed by him following the January 2, 
 
         1985 injury.  However, Dr. Carlstrom, in a letter to claimant's 
 
         counsel in July 1988 opined that claimant "suffered a new injury 
 
         in December, 1987, January and February, 1988, and that he 
 
         suffered an additional 5-8% impairment of the body as a whole as 
 
         a result of that activity."
 
         
 
              Claimant testified that on December 28, 1987, he was 
 
         performing work which exceeded the restrictions imposed by Dr. 
 
         Carlstrom.  However, on December 18, 1987, following a functional 
 
         capacity evaluation in November of 1987 by Robert W. Jones, B.S., 
 
         a vocational evaluator, Dr. Blessman stated he would allow 
 
         claimant to return to work as a truck driver in the forestry 
 
         department.  The doctor stated that the job would not require 
 
         claimant to exceed the restrictions he felt should be imposed on 
 
         claimant's activity.  These restrictions were different than Dr. 
 
         Carlstrom's and consisted of no lifting from floor to waist over 
 
         45 pounds and no lifting above shoulder level.  Following 
 
         claimant's referral by Dr. Blessman to Dr. Carlstrom on March 1, 
 
         1988, and the reimposition of the 20 pound limit for lifting from 
 
         floor to waist, Dr. Blessman stated that there was no available 
 
         work with the City under Dr. Carlstrom's restrictions and 
 
         claimant was sent home by the personnel department.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On January 20, 1989, Dr. Blessman issued a letter report 
 
         stating that after his review of the medical records
 
         
 
         
 
         
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 4
 
         
 
         
 
         and evaluations, claimant could safely drive a motor vehicle but 
 
         that he could not return to his job in the parks department.  The 
 
         doctor further stated that he would restrict claimant's 
 
         activities as he has done before by allowing lifting from floor 
 
         to waist up to 45 pounds but prohibiting all lifting above 
 
         shoulder  level.  Unfortunately, Dr. Blessman did not indicate 
 
         which job he was referring to in the parks department and whether 
 
         this included the job he was performing on December 28, 1987.
 
         
 
              Claimant testified that his past employment primarily 
 
         consisted of manual labor as a "gandy dancer" - a job involving 
 
         the replacement of rails for a railroad.  Also, claimant held 
 
         jobs performing building maintenance work.  Claimant's employment 
 
         with the City over the years has involved primarily manual labor 
 
         in the care of parks and cemetery grounds; work as a helper in a 
 
         sewage treatment plant; and, general equipment maintenance and 
 
         repair work along with truck driving.  Claimant occasionally 
 
         supervised a tree trimming crew consisting of summer help.
 
         
 
              Claimant has an eleventh grade formal education but has 
 
         recently earned his GED.  Claimant has received a certificate of 
 
         completion at an area community college for machine shop work but 
 
         testified that he has not utilized this training.  Claimant has 
 
         secured other employment since leaving the City of Des Moines 
 
         with a cement company as a dump truck driver.  Claimant testified 
 
         that no physical work is involved in this job.  Claimant stated 
 
         that he currently earns $7.50 an hour and but will not receive 
 
         health insurance until after 600 hours on the job.
 
         
 
              Claimant said that he wants to return to employment with the 
 
         City due to higher salary and benefits.  He said he applied for 
 
         at least two city jobs but was not chosen.  He has refused one 
 
         job as a street sweeper because such  work exceeded his physician 
 
         imposed activity restrictions.
 
         
 
              On a few occasions Dr. Blessman expressed concern about 
 
         claimant's recreational activities of black powder shooting along 
 
         with competition shooting and hunting with a bow and arrow.  
 
         Claimant admitted to such activity in the past but states that he 
 
         has restricted this activity since the development of his neck 
 
         problems.
 
         
 
              Michael Peterson, from the City Safety and Training 
 
         Department, testified that there are several jobs with the City 
 
         that would fit into claimant's limitations which could become 
 
         available from time to time.  Some of the jobs would involve pay 
 
         exceeding claimant's salary in the forestry department.  Peterson 
 
         did not indicate when vacancies would occur or claimant's chances 
 
         of securing these jobs.  The current forestry department 
 
         supervisor, Bob.Cooper, testified that claimant could perform the 
 
         job he  had at the time
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 5
 
         
 
         
 
         of the December 28, 1987 injury under the restrictions imposed by 
 
         Dr. Blessman.  It is unclear whether claimant was actually 
 
         offered a return to work in this driver's job after he left on 
 
         March 1, 1988.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note: A credibility finding is necessary to this decision as 
 
         defendant places claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant will be 
 
         found credible.
 
         
 
              I.  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 may be 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 condi-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NICOLINO.V. CITY OF DES MOINES
 
         Page 6
 
         
 
         
 
         tion, 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, claimant contends that he has 
 
         suffered additional disability (over that which existed prior to 
 
         December 28, 1987) as a result of the work injury due to 
 
         additional permanent impairment to the body as a whole.  First, 
 
         the greater weight of the evidence established that he has 
 
         suffered additional permanent partial impairment.  The views of 
 
         Dr. Carlstrom, a treating physician before and after the December 
 
         28, 1987 injury, are virtually uncontroverted on the issue of his 
 
         additional impairment rating.  However, the mere fact that a 
 
         worker suffers additional permanent partial impairment may or may 
 
         not entitle claimant to permanent partial disability benefits for 
 
         a loss of earning capacity under traditional industrial 
 
         disability concepts.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, February 28, 
 
         1985.)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 7
 
         
 
         
 
              Turning to the factors of industrial disability, claimant's 
 
         medical condition before the work injury was far from excellent.  
 
         He had a very significant  permanent  partial impairment and very 
 
         serious work restrictions against lifting, bending, pushing and 
 
         pulling.  It would appear that both Dr. Carlstrom. and Dr. 
 
         Blessman agreed that there has been change in work restrictions 
 
         although they disagreed as to what those restrictions should be.
 
         
 
              Claimant is apparently basing his claim upon his inability 
 
         to continue working for the City in the forestry department as a 
 
         truck driver.  Claimant testified that he was not allowed to 
 
         return to work to this job following March 1 of 1988.  Given 
 
         claimant's difficulties in performing  that work beginning in 
 
         December of 1987, the City is certainly justified in not allowing 
 
         a return to work as claimant would in all likelihood have 
 
         received further injuries.  It is apparent that the restrictions 
 
         imposed by Dr. Carlstrom as the result of the January 2, 1985 
 
         injury were the most correct work activity restrictions given 
 
         claimant's experience on and after December 28, 1987.  Dr. 
 
         Blessman, in retrospect, was probably not correct in allowing 
 
         claimant to return to the driver job on December 28, 1987.  It is 
 
         clear to the undersigned that he was not physically able to 
 
         perform such work and will never be able to do so.  
 
         Unfortunately, this disability well preceded and is unrelated to 
 
         the work events of December 28, 1987.
 
         
 
              Therefore, given the evidence, this deputy commissioner must 
 
         conclude that despite additional permanent partial impairment, 
 
         the added impairment caused no further loss of earning capacity 
 
         other than that which existed prior to December 28, 1987.  This 
 
         administrative law judge has ruled in the past that permanent 
 
         partial impairment is only one factor in the total analysis of 
 
         industrial disability or loss of earning capacity.  Any change of 
 
         permanent partial impairment may or may not result in compensable 
 
         disability.  Even when a work injury has not caused permanent 
 
         partial impairment, this deputy commissioner has awarded benefits 
 
         when the work injury resulted in a change of employment status 
 
         which reduced claimant's earning capacity.  In the case at bar, 
 
         this analysis works against the claimant because although there 
 
         is permanent partial impairment it does not affect his ability to 
 
         work.  The injury, by itself, has not affected his ability to 
 
         work beyond that which previously existed.
 
         
 
              On the other hand claimant has shown an aggravation of a 
 
         preexisting condition and is entitled to temporary total 
 
         disability benefits for any time lost from his work from the City 
 
         between December 28, 1987 and March 15, 1988.  The only showing 
 
         of a medically authorized absence is from March 1, 1988 through 
 
         March 15, 1988, upon the advice of Dr. Carlstrom after which time 
 
         claimant returned to the same
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 8
 
         
 
         
 
         condition he was before December 28, 1987, at least insofar as 
 
         his work activity and restrictions are concerned.  Therefore, 15 
 
         days of temporary total disability benefits will be awarded.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
         
 
              2. On December 28, 1987, claimant suffered an injury to the 
 
         neck and arm which rose out of and in the course of his 
 
         employment with the City of Des Moines.
 
         
 
              3. The work injury of December 28, 1987, was a cause of a 
 
         period of temporary total disability from work from March 1, 1988 
 
         through March 15, 1988, at which time claimant returned to the 
 
         same condition as before December 28, 1987.  During this time, 
 
         claimant was under the care of his primary treating orthopedic 
 
         surgeon.
 
         
 
              4. The work injury of December 28, 1987, was a cause of a 
 
         five to eight percent permanent partial impairment to the body as 
 
         a whole.  However, claimant's work restrictions imposed by 
 
         treating physicians remain unchanged by this injury.
 
         
 
              5. Claimant has failed to show that the work injury of 
 
         December 28, 1987 and the additional permanent partial impairment 
 
         caused thereby is a cause of additional permanent partial 
 
         disability.  The additional permanent partial impairment did not 
 
         change the work restrictions.  Claimant injured himself  on the 
 
         first day after his return to work from the effects of a prior 
 
         neck and arm injury on January 2, 1985.  Claimant had a very 
 
         significant prior disability which greatly affected his earning 
 
         capacity before December 28, 1987.  Claimant had prior work 
 
         restrictions consisting of no lifting from floor to waist over 20 
 
         pounds, no repetitive bending, no shoveling, no lifting above 
 
         shoulder level and no pushing or pulling over 40 pounds.  
 
         Claimant returned to work on December 28, 1987, to the job of 
 
         truck driver in the forestry department.  The demands of that job 
 
         exceeded claimant's physical limitations and he immediately 
 
         aggravated his prior existing condition.  Claimant's earning 
 
         capacity remains unchanged by the additional permanent partial 
 
         impairment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to two and 
 
         one-seventh weeks of temporary total disability benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         NICOLINO V. CITY OF DES MOINES
 
         Page 9
 
         
 
         
 
                                      ORDER
 
         
 
              1. Defendant shall pay to claimant temporary total 
 
         disability benefits from March 1, 1988 through March 15, 1988,. 
 
         at the rate of two hundred fifty-seven and 79/100 dollars 
 
         ($257.79) per week.
 
         
 
              2. Defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3. Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4. Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              5. Defendant 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 18th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave.
 
         Des Moines  IA  50309-3320
 
         
 
         Mr. Steven C. Lussier
 
         Mr. Patrick J. Hopkins
 
         Assistant City Attorneys
 
         City Hall, East lst & Locust
 
         Des Moines  IA  50307
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803
 
                                         Filed January 18, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH D. NICOLINO,
 
                                         File No. 881038
 
              Claimant,
 
                                         A R B I T R A T I 0 N
 
         VS.
 
                                         D E C I S I 0 N
 
         CITY OF DES MOINES,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803 - Extent of permanent partial disability
 
         
 
              Despite a showing of additional permanent partial impairment 
 
         of five to eight percent in an uncontroverted opinion by an 
 
         orthopedic surgeon, no additional permanent partial disability or 
 
         loss of benefits were awarded and there was no finding of an 
 
         additional loss of earning capacity caused by this impairment.  
 
         Claimant previously injured his back on January 2, 1985.  
 
         Claimant had entered into a settlement agreement under Iowa Code 
 
         section 86.13 for this injury on March 2, 1988.  When he returned 
 
         to work on December 28, 1987, claimant immediately injured 
 
         himself again.  There was, however, no change in restrictions and 
 
         the original treating physician, an orthopedic surgeon, had not 
 
         authorized a return to work, only the company doctor.  It was 
 
         found that the company doctor was not correct and should not have 
 
         allowed the return to work.  Claimant was incapable of performing 
 
         such work.  It was found that claimant's work injury and the 
 
         permanent partial impairment did not change claimant's prior 
 
         extensive and serious permanent partial disability.  It was held 
 
         that permanent partial impairment is only one factor in 
 
         industrial disability and does not compel an award of permanent 
 
         partial disability benefits.  This deputy commissioner has held 
 
         in the past that a work injury can cause permanent partial 
 
         disability and loss of earning capacity even without a showing of 
 
         permanent partial impairment.  The same analysis must compel no 
 
         award in the cases where permanent partial impairment has not 
 
         been shown to materially affect earning capacity.  Therefore, 
 
         only temporary total disability was awarded.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHARON NUTT,                                  File No. 881041
 
         
 
              Claimant,                             A R B I T R A T I O N
 
         
 
         vs.                                           D E C I S I O N
 
         
 
         OSCAR MAYER FOODS CORP.,                         F I L E D
 
         
 
              Employer,                                  NOV 06 1989
 
              Self-Insured,
 
              Defendant.                             INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant 
 
         Sharon Nutt against Oscar Mayer Foods Corporation, self-insured 
 
         employer, defendant, to recover benefits as the result of an 
 
         alleged injury sustained on July 22, 1988.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         in Des Moines, Iowa on September 15, 1989.  The record consists 
 
         of the testimony of the claimant; Cecelia Blaskovich; joint 
 
         exhibits 1 through 4; claimant's exhibits A through G; and, 
 
         defendant's exhibits 1, 2 and 3.
 
         
 
                                     ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              Whether claimant's alleged injury on July 22, 1988 arose out 
 
         of and in the course of her employment;
 
         
 
              Whether claimant's alleged disability is causally connected 
 
         to her injury;
 
         
 
              The nature and extent of claimant's disability and 
 
         commencement date of any benefits;
 
         
 
              Whether claimant is entitled to medical benefits under 
 
         section 85.27 of The Code of Iowa; and,
 
         
 
              Whether the odd-lot doctrine applies to the claimant.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she is 43 years old and graduated from 
 
         high school with average grades.  Claimant said she has no other 
 
         formal education.
 
         
 
              Claimant described the various jobs she has held since high 
 
                                                
 
                                                         
 
         school and before beginning work with the defendant employer on 
 
         April 25, 1977.  Some of these jobs involved taking inventory, 
 
         ordering stock, being the head person in a women's ready-to-wear 
 
         department at Kresge's, working in a large Super Valu Store 
 
         heading a produce department, working at a window manufacturing 
 
         plant and being head of a men's ready-to-wear-department at 
 
         Place's.
 
         
 
              Claimant stated she has had no injuries prior to April 25, 
 
         1977 except that she has had a left carpal tunnel syndrome 
 
         corrected in July of 1980 and a right carpal tunnel correction on 
 
         December 8, 1981, and a stitch irritation on the left carpal 
 
         tunnel area on the same date.  Claimant emphasized she has no 
 
         hand problems today.  Claimant stated she passed the 
 
         preemployment physical with no restrictions.
 
         
 
              Claimant described her job with the defendant employer as 
 
         requiring lifting 12-15 pound pork bellies and placing them into 
 
         boxes to ship out, working on the kill floor operating a switch, 
 
         shaving hogs, taking out hearts, popping kidneys and cheeking.
 
         
 
              Claimant said that the employer started speeding up the 
 
         production line in 1983.  Claimant indicated she had some right 
 
         shoulder problems in 1983, but a cortisone shot ultimately solved 
 
         that problem and she continued working.
 
         
 
              Claimant stated the pain in her left shoulder and neck began 
 
         in May of 1988 with no specific incident or occurrence.  Claimant 
 
         said that in the summer of 1988, the pain went into the neck and 
 
         down the left shoulder.  Claimant said she is left-handed.
 
         
 
              Claimant testified the pain became worse and she sought 
 
         medical attention.  Claimant indicated that the pain became so 
 
         intense that she did not go to work on July 22, 1988.  Claimant 
 
         testified John L. Beattie, M.D., gave her some muscle relaxants 
 
         and pain pills to take over the weekend.  Claimant said she 
 
         returned to her cheeking job on July 25, 1988 and tried to work 
 
         as long as she could.  Claimant worked through August 10, 1988. 
 
         Claimant said she has not returned to Oscar Mayer since August 
 
         10, 1988.
 
         
 
              Claimant stated that she talked to Art Sorenson at Oscar 
 
         Mayer in July or August of 1988 as to workers' compensation and 
 
         that he told her it was not work related.  Claimant was then 
 
         placed on sick pay and has used all of it.
 
         
 
              Claimant said she has had a knot on the back of her head 
 
         forever and when Kurt Klise, M.D., the company doctor, saw this, 
 
         she said he told Art Sorenson.  Claimant said that Sorenson based 
 
         his "no workers' compensation" on this.  Claimant said Mr. 
 
         Sorenson told the claimant to obtain a doctor's letter setting 
 
         out her restrictions.  Claimant said the doctor sent this letter 
 
         to Sorenson (claimant's exhibit A, page 7).
 
         
 
              Claimant testified she had a test at the University of Iowa 
 
                                                
 
                                                         
 
         Hospitals which she said revealed a tear at the fourth disc in 
 
         her neck.  Claimant said she is scheduled for surgery November 6, 
 
         1989.  Claimant stated she has a neck collar she wears at times, 
 
         but.it lies across her shoulder and hurts.  Claimant stated she 
 
         used a TENS unit for two months, but it did not work.
 
         
 
              Claimant said she filed for unemployment and received 39 
 
         weeks of benefits.  Claimant indicated she searched for jobs 
 
         during this period, including applying at IBP, Inc., in July of 
 
         1989.  Claimant testified she has made no job searches since July 
 
         of 1989.
 
         
 
              Claimant indicated she has problems sitting, reading a book, 
 
         cross-stitching, mowing the yard, or doing certain things around 
 
         the house because of the pain.  Claimant said her injury has 
 
         affected her emotionally and she takes anti-depressants.  
 
         Claimant said she would like to scream.
 
         
 
              Claimant related she was recognized prior to her injury at 
 
         Oscar Mayer for her perfect attendance.
 
         
 
              Claimant said she met with the vocational rehabilitation 
 
         person two times, once on September 5, 1989 and the last time on 
 
         September 13, 1989.
 
         
 
              Claimant said the company doctor, Dr. Klise, sent her to 
 
         Daniel Allen, M.D., and Dr. Allen sent her to David Boarini, M.D. 
 
         Claimant testified to the medical bills and mileage she has 
 
         incurred due to her alleged injury.
 
         
 
              Claimant acknowledged that the lump on her back was 
 
         diagnosed by Dr. Beattie as arthritis before June of 1988, but 
 
         emphasized that this is not where her pain is located.  She 
 
         indicated that Dr. Beattie has been her doctor for 15 years.
 
         
 
              Claimant said she was making $6.49 per hour when she first 
 
         worked for defendant employer and was making $9.55 per hour when 
 
         she last worked for them.  Claimant said this is approximately 
 
         three times more per hour than any job she has ever had.
 
         
 
              Claimant said she did not find out about her surgery until 
 
         August 31, 1989, two weeks before this hearing.
 
         
 
              Cecilia Blaskovich, owner of Medisult, Ltd., and a 
 
         rehabilitation nurse consultant, testified that she reviewed 
 
         claimant's file, medical information and status of any 
 
         restrictions.  She testified claimant could be the head or 
 
         manager of several available businesses.
 
         
 
              Blaskovich testified claimant told her that claimant is to 
 
         have cervical fusion surgery November 6, 1989.  Blaskovich said 
 
         this surgery should enhance claimant's ability to get a job and 
 
         also should alleviate her pain.. She said if claimant was willing 
 
         to travel to Des Moines, she could get a good job at $5-$6 per 
 
         hour.  Blaskovich acknowledged she was first contacted by 
 
                                                
 
                                                         
 
         defendant's attorney July 25, 1989 and first contacted claimant 
 
         on September 6, 1989.  Blaskovich said she realized claimant was 
 
         having surgery so she did not believe there would be any job 
 
         placement before claimant's surgery.  She admitted that she 
 
         herself had contact with claimant only on September 13, 1989. 
 
         Blaskovich admitted she feels claimant has neck aches as she 
 
         observed her and does have restrictions today.  Blaskovich 
 
         defended her permanent no restrictions comment earlier by saying 
 
         "that she assumed surgery will be successful."  Blaskovich denied 
 
         that all of her information as to jobs today is premised on 
 
         successful surgery.  She agreed that claimant should not get a 
 
         job now when surgery is scheduled for November of 1989.  Later, 
 
         Blaskovich said that claimant is employable today.  Blaskovich 
 
         then said that it is not an ideal time for claimant to be 
 
         working, but said that claimant could be looking for a job.  
 
         Blaskovich emphasized that cervical surgery is always successful, 
 
         but admitted that limited motion results therefrom.
 
         
 
              Blaskovich was asked whether she was retained by Oscar Mayer 
 
         to return claimant to work or to scan the papers to see what jobs 
 
         are available.  She replied, "Not retained to find a job, but to 
 
         see what opportunities exist in the job market."  She admitted 
 
         that what is best for the claimant is best for her client Oscar 
 
         Mayer.
 
                            
 
                                                         
 
              The claimant's medical records reflect she had a left carpal 
 
         tunnel syndrome corrected in July of 1980 and a right carpal 
 
         tunnel correction and stitch irritation on the left carpal tunnel 
 
         area on December 8, 1981.  There was no medical evidence of any 
 
         impairment resulting from these surgeries.
 
         
 
              On July 28, 1988, Dr. Boarini wrote:
 
         
 
              Sharon Nutt was in the office on July 21, 1988.
 
              As you know, this is a 44-year-old woman who comes in 
 
              complaining of left-sided neck pain.  She's been on a 
 
              variety of muscle relaxants and anti-inflammatories without 
 
              much help.  Physical therapy hasn't seemed to change her 
 
              symptoms.
 
         
 
              Upon examination, the patient has a good range of motion in 
 
              the neck.  There was some break away weakness in the left 
 
              arm but I don't think it was physiologic.  Sensation is 
 
              intact. The biceps and triceps reflexes are symmetrical.
 
         
 
              I reviewed the patient's cervical spine films from few weeks 
 
              ago and they were normal.
 
         
 
              I think this is just myofascial neck pain. .  .  .
 
         
 
         (Defendant's exhibit 2-h, page 1)
 
         
 
              On August 24, 1988, Dr. Beattie wrote:
 
         
 
              I would suggest that a different type of employment be 
 
              found in the plant.  There should not be any movements that 
 
              require excessive motion of the cervical or upper thoracic 
 
              spine.  She is also limited in her ability to move her 
 
              arms, particularly in reaching or holding her arms in any 
 
              abducted positions.  This pain syndrome has caused her to 
 
              necessarily limit the motion of her upper extremity.
 
         
 
              I hope this letter will confirm that my patient, Sharon Nutt 
 
              needs a job that is less physically demanding.  If such a 
 
              job can be found, I know that she will be able to continue 
 
              in.her employment in a satisfactory manner.
 
         
 
         (Claimant's exhibit A, page 7)
 
         
 
              On January 16, 1989, Dr. Beattie wrote:
 
         
 
              Because of the obvious disability in the cervical spine and 
 
              the upper trapezius area, I measured the motion of the 
 
              cervical spine.  I first measured the range of 
 
              flexion/extension which should equal 60 degrees.  She can 
 
              flex from neutral position to about 10 degrees which is a 
 
              loss of 20 degrees and a retention of 10 degrees.  She can 
 
              extend from neutral position to about 10 degrees which is a 
 
              loss of 20 degrees and a retention of 10 degrees.  The next 
 
              measurement of restriction of the cervical spine was that of 
 
                                                
 
                                                         
 
                   lateral bending.  The average range of lateral bending or 
 
              lateral flexion should equal about 80 degrees.  She can 
 
              right lateral flex from neutral position to about 10 degrees 
 
              which is a loss of 30 degrees and a retention of 10 degrees.  
 
              She can left lateral flex from neutral position to 10 
 
              degrees which is a loss of 30 degrees and a retention of 10 
 
              degrees. The next range of restricted motion measured was 
 
              that of rotation.  This should equal about 60 degrees.  She 
 
              can right rotate from neutral position to 10 degrees which 
 
              is a loss of 20 degrees and a retention of 10 degrees.  She 
 
              can left rotate from neutral position to 10 degrees which is 
 
              a loss of 20 degrees and a retention of 10 degrees.  After 
 
              further examination of the cervical region it also reveals 
 
              pain in the upper trapezius area bilaterally.  I get the 
 
              clinical impression that there is atrophy of the upper 
 
              trapezius muscle bilaterally because of the disability.
 
         
 
              . . .
 
         
 
              After my examination of Sharon Nutt, it is my opinion that 
 
              she has severe and permanent disability in her cervical 
 
              region.  It is my opinion that this disability is related to 
 
              her 12 years of employment at the Oscar Mayer Plant, and the 
 
              stress put on her cervical spine by the type of job she was 
 
              doing, i.e., cheeking on the line.
 
         
 
              It is my opinion that Sharon Nutt has a permanent partial 
 
              impairment of the body as a whole in the range of 25-30%.
 
         
 
         (Claimant's exhibit A, pages 1 and 2)
 
         
 
              University of Iowa Hospitals and Clinics records on April 5, 
 
         1989 reflect:
 
         
 
              After admission on April 4, 1989, the Orthopaedic diagnosis 
 
              was established as small central herniation at cervical 
 
              5-6.
 
         
 
              . . .
 
         
 
              . . . There is noted to be a myelographic defect of C5 
 
              cervical root on the right and diffuse bulging on the C5,6 
 
              disc on CT scan.
 
         
 
              Recommendations:  We informed the patient that she has a 
 
              difficult problem and that conservative treatment is the 
 
              treatment of choice at present.  The possibility exists that 
 
              a surgical procedure might relieve her pain but we estimate 
 
              the success rate of such a procedure being in the 60% range. 
 
              We instructed the patient to continue with physical therapy 
 
              and gave her a soft cervical collar for daytime and 
 
              nighttime use.  We have arranged for her to return to clinic 
 
              on a day when Dr. Clark is available for a second opinion 
 
              regarding surgical options for this patient.
 
         
 
                                                
 
                                                         
 
              . . .
 
         
 
              5-25-89  Sharon returns for followup and an opinion with 
 
              review of her study.  She underwent a diagnostic work-up by 
 
              Dr. Glaser.  I reviewed her myelogram which showed a mild 
 
              possible bulge at C5,6 however the CT scan showed no 
 
              significant bulge and the report states that it was a normal 
 
              study.  The patient's primary complaint is posterior neck 
 
              and shoulder pain.  In addition to the myelogram and CT 
 
              scan, she has had normal EMG/NCV in April.
 
         
 
              Assessment:  Because of the very mild findings on the 
 
              myelogram.and because of the essentially normal CT scan, I 
 
              do not feel that the patient is a candidate for a discectomy 
 
              and fusion at this time and would prefer conservative 
 
              treatment. The patient states, however, that she is 
 
              significantly impaired by this condition.
 
         
 
              Plan:  Therefore, we have elected to give the patient a TENS 
 
              trial.  She was sent to Physical Therapy today for a trial 
 
              of the unit.  She was given a prescription if the patient 
 
              has a positive trial.  The patient will return to clinic in 
 
              2-3 months.  I discussed with her the possibility of 
 
              obtaining a discogram if the patient remains symptomatic at 
 
              that time. The patient was agreeable with this plan.  All 
 
              questions were answered.
 
         
 
         (Claimant's exhibit B, pages 5 and 6)
 
         
 
              On July 22, 1989, Peter D. Wirtz, M.D., wrote:
 
         
 
              The patient was evaluated in my office May 3, 1989.  This is 
 
              a 45 year old that gives a history of neck symptmos [sic] 
 
              developing on a gradual basis while working at Oscar Mayer 
 
              doing cheeking in 1988.  It became symptomatic June, 1988. 
 
              She saw Dr. Klise who referred her to Dr. Allen.  She did an 
 
              X-ray in the neck area.  The patient was then referred to 
 
              Dr. Boarini who evaluated the area.  The patient continued 
 
              with symptoms and was referred to Dr. Clark in Iowa City who 
 
              performed a myelographic CT scan as well as an EMG on the 
 
              right upper extremity which culminated in a disc abnormality 
 
              at C5-6.
 
         
 
              Patient has continued to have pain in the neck area, worse 
 
              on the right.  She notes it off to the right shoulder area 
 
              and it is in the triceps area as well as numbness in the 
 
              four fingers.  She is not presently on any medications.
 
         
 
              . . .
 
         
 
              Diagnosis:
 
         
 
              1.  Disc herniation C5-6.
 
         
 
              Regarding 5/l/89 correspondence, the following will be 
 
                                                
 
                                                         
 
                   conclusions.
 
         
 
              The patient's cervical disc degeneration is a natural 
 
              progression condition of the body and not related to any one 
 
              specific incident or injury.
 
         
 
              This patient's neck examination revealed stiffness in a left 
 
              neck rotation, otherwise, no evidence of neurologic or 
 
              condition that would restrict her from her routine 
 
              physiologic activities.  The X-ray indicating disc changes 
 
              at C5-6 are not restrictive in functional activities.
 
         
 
              This patient's neck condition indicates a disc space 
 
              degeneration at C5-6 which is a 5% impairment of the body as 
 
              a whole.  This impairment is attributable to the natural 
 
              disc degeneration this patient has and is not related to any 
 
              one specific injury or activity.
 
         
 
         (Defendant's exhibit 2-j, pages 6 and 7)
 
         
 
              Claimant received several letters congratulating her on 
 
         perfect or near-perfect attendance at her place of employment 
 
         with defendant.  As an example, a February 1, 1988 letter written 
 
         to claimant by Mr. Roger D. Kinson, Vice President and Plant 
 
         Manager, reflected:
 
         
 
              I would like to take this opportunity to recognize your fine 
 
              efforts in attaining a perfect attendance record for 1987.
 
         
 
              This accomplishment demonstrates your strong sense of 
 
              responsibility to both your fellow employees and your 
 
              company.  Your achievement in maintaining this excellent 
 
              record certainly deserves our sincere appreciation.
 
 
 
                            
 
                                                         
 
         
 
              Once again, thank you very much for your excellent record!
 
         
 
         (Claimant's exhibit F, page 4)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on July 22, 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).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 22, 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 v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
                                                
 
                                                         
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              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.
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
                   By the very meaning of the phrase, a person with a 
 
              "permanent disability" can never return to the same physical 
 
              condition he or she had prior to the injury....See, 2 A. 
 
              Larson, The Law of Workmen's Compensation section 57.12 
 
              (1981).  The healing period may be characterized as that 
 
              period during which there is reasonable expectation of 
 
              improvement of the disabling condition," and ends when 
 
              maximum medical improvement is reached.  Boyd v. Hudson Pulp 
 
              & Paper Corp., 177 So.2d 331, 330 (Fla. 1965).  That is, it 
 
              is the period "from the time of the injury until the 
 
              employee is as far restored as the permanent character of 
 
              his injury will permit.  "Winn Drilling Company v. 
 
              Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 
 
              904,905-6 (1965).  See also W. Schneider, Schneider's 
 
              Workman's Compensation, section 2308 (1957).  Thus, the 
 
              healing period generally terminates "at the time the 
 
              attending physician determines that the employee has 
 
              recovered as far as possible from the effects of the injury.  
 
              Winn, 203 N.E. at 906.
 
         
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
         1981).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)"u" provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselmann v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
                                                
 
                                                         
 
         
 
              This 43-year-old claimant has worked over 11 years for this 
 
         defendant employer in an industry that involves long successive 
 
         hours in repetitive work involving her hands, arms, shoulders and 
 
         various body movements.  Dr. Beattie has treated claimant over a 
 
         period of at least 15 years.  Because of the nature of the injury 
 
         and complaints, the undersigned believed that Dr. Beattie is the 
 
         best person to determine whether there is an causal relationship 
 
         to claimant's disability to any injury.  The medical evidence 
 
         reflects that the nature of claimant's complaints arose out of 
 
         the nature of her work.  The evidence shows that claimant does 
 
         have an arthritic condition.  Most people as they grow older 
 
         develop to some extent an arthritic condition as they age in the 
 
         natural process.  The nature of claimant's work can result in 
 
         triggering, worsening or aggravating an underlying arthritic 
 
         condition that is occurring in one's body through a natural 
 
         buildup.  The undersigned finds that claimant incurred a 
 
         cumulative injury due to repetitive traumas which resulted in 
 
         claimant leaving work on July 22, 1988 because of the pain she 
 
         was having.  The undersigned further finds that this July 22, 
 
         1988 injury is work related.
 
         
 
              Dr. Beattie opined after his examination of Sharon Nutt in 
 
         January of 1989 that she has a severe and permanent disability in 
 
         her cervical region and that "this disability is related to her 
 
         12 years of employment at the Oscar Mayer Plant, and the stress 
 
         put on her cervical spine by the type of job she was doing, i.e., 
 
         cheeking on the line."  He further opined that "Sharon Nutt has a 
 
         permanent partial impairment of the body as a whole in the range 
 
         of 25-30%."  Although there is other medical testimony that 
 
         differs with Dr. Beattie's conclusion and indicates that claimant 
 
         has a natural buildup of an arthritic condition that is not 
 
         related to work, these doctors had little contact with the 
 
         claimant.  The undersigned believes the only reason the claimant 
 
         is missing work and has not been able to return to work is 
 
         because of the July 22, 1988 repetitive injury to her shoulders 
 
         and cervical neck area.  There are several letters in evidence 
 
         from the employer commending the claimant for her perfect or 
 
         near-perfect attendance.  These letters cover a period beginning 
 
         in 1983 with the last letter being dated February 1, 1988.  The 
 
         University of Iowa Hospitals and Clinics records indicate on 
 
         April 4, 1989 an orthopaedic diagnosis as small central 
 
         herniation of cervical 5-6.  There seems to be later confusion in 
 
         the medical records of the various doctors as to whether there is 
 
         a herniation or a mild possible bulge at C5,6.  Claimant 
 
         testified that she is scheduled for surgery on November 6, 1989.  
 
         This testimony was supported by the defendant's vocational 
 
         rehabilitation consultant who understands claimant is to have 
 
         cervical fusion surgery in November of 1989.  It appears that the 
 
         parties did not know that surgery was going to be recommended and 
 
         in fact to take place until on or around August 31, 1989.  It is 
 
         unfortunate that this hearing was held before the results of this 
 
         surgery could be determined.  It is obvious that the claimant has 
 
         not healed or reached maximum recovery from her July 22, 1988 
 
         injury.  Medical records from the University of Iowa Hospitals 
 
                                                
 
                                                         
 
         and Clinics indicate that claimant has been on a conservative 
 
         program because the success of such surgical procedure 
 
         anticipated is in the 60% range.  It is obvious surgery has been 
 
         put off to see if in fact the claimant can recover without a 
 
         dangerous surgical process being performed.  It appears that 
 
         claimant has gone through various medical tests and procedures 
 
         including the use of a TENS unit to attempt to bring about a 
 
         complete recovery or at least to reach maximum recovery so that 
 
         an impairment can be determined, if any.  The undersigned finds 
 
         that Dr. Beattie's use of the word disability is in fact meant to 
 
         be impairment.  The undersigned finds that claimant's current 
 
         disability is causally connected to her injury of July 22, 1988.
 
         
 
              Evidence shows that claimant was first off work because of 
 
         this injury on July 22, 1988 and attempted to return to work on 
 
         July 25, 1988 and worked to and including August 10, 1988.  
 
         Because of claimant's condition, she was no longer able to work 
 
         and has been off work to the present.
 
         
 
              There are several issues that the parties have set out for 
 
         resolution.  The undersigned finds that because of the impending 
 
         surgery on November 6, 1989, claimant is still in her healing 
 
         period.  The defendant's vocational consultant's testimony was 
 
         very confusing and inconsistent.  She first indicates the 
 
         claimant can return to work and has no permanent restrictions, 
 
         and yet she admitted that she delayed seeing the claimant because 
 
         she understood the claimant was having impending surgery in 
 
         November of 1989 and therefore she saw no hurry in attempting to 
 
         find claimant a job.  The consultant further testified that this 
 
         was not an ideal time for claimant to be working, but indicated 
 
         that claimant could be looking for a job.  She also commented 
 
         that cervical surgery is always successful.  The undersigned 
 
         finds the consultant's testimony not only confusing and 
 
 
 
                            
 
                                                         
 
         inconsistent, but totally unacceptable.  It took claimant's 
 
         counsel considerable time in his cross-examination to get this 
 
         witness' inconsistencies and contradictions clarified.  
 
         Unfortunately, he was not successful and the inconsistencies only 
 
         increased in the record.
 
         
 
              The undersigned finds that claimant incurred a healing 
 
         period of one day on July 22, 1988 and has incurred an additional 
 
         healing period beginning August 11, 1988 which period continues 
 
         to run and will continue to run until the employee has returned 
 
         to work or it is medically indicated that significant improvement 
 
         from the injury is not anticipated or until the employee is 
 
         medically capable of returning to employment substantially 
 
         similar to the employment in which the employee was engaged at 
 
         the time of the injury, whichever occurs first, all as provided 
 
         by 85.34 of The Code of Iowa.
 
         
 
              Defendant appeared to contend that the claimant is not 
 
         injured, or that if she is, it was not a work-related injury.  It 
 
         is undisputed that the defendant did not desire to take the 
 
         claimant back to work or find any alternative employment for her 
 
         notwithstanding Dr. Beattie's letter to the personnel manager, 
 
         Art Sorenson, in August of 1988.  It appears there was no 
 
         response from the company concerning this letter, which conduct 
 
         is frowned upon by the undersigned.
 
         
 
              All the other issues the parties set out are moot at this 
 
         time in light of the above finding of the healing period still 
 
         being in existence.  Dr. Beattie issued a 25%-30% impairment 
 
         rating to the body as a whole.  Subsequent to that opinion, 
 
         additional medical evidence warranted that this claimant has in 
 
         fact not healed, but needs surgery and it cannot be anticipated 
 
         when in fact claimant's healing period will end.  Therefore, 
 
         there is only one issue remaining, namely, the responsibility of 
 
         the medical bills under Iowa Code section 85.27.
 
         
 
              The defendant denied liability.  The defendant is therefore 
 
         responsible for claimant's medical bills as set out in claimant's 
 
         exhibit C which total $1,302.00.  Defendant is further 
 
         responsible for the medical bills incurred by this claimant 
 
         during her healing period for this injury and including her 
 
         November 6, 1989 surgery. Defendant is also responsible for the 
 
         medical mileage for treatment as set out in claimant's exhibit G 
 
         which total 2,732 and for any additional mileage incurred by this 
 
         claimant for medical treatment during her healing period.  
 
         Defendant contends that a $200 bill of Dr. Beattie should not be 
 
         their responsibility since claimant had not filed under 85.39 
 
         prior to the hearing.  In addition, they contend that there is no 
 
         other rating by any of the defendant's doctors.  The undersigned 
 
         finds that Dr. Wirtz issued an impairment rating, but even if in 
 
         fact there had been no other numerical rating by defendant's 
 
         doctor, the undersigned finds that a finding of no impairment is 
 
         the same as an impairment rating of zero.  Additionally, the 
 
         undersigned finds that an application for an 85.39 examination 
 
         need not be made prior to a hearing if the issue is set out on 
 
                                                
 
                                                         
 
         the hearing assignment order which in this case the hearing 
 
         assignment order does in fact have the 85.39 issue set out 
 
         therein.  Defendant therefore is responsible for the $200 bill of 
 
         Dr. Beattie, the balance of which it appears is included in the 
 
         medical bills set out above.  Defendant shall be given credit for 
 
         the $1,892.00 sick pay paid by the defendant and as provided 
 
         under 85.38(2), Code of Iowa.
 
         
 
                                FINDINGS OF FACT
 
         
 
              Claimant incurred a work-related cumulative injury to her 
 
         shoulders and cervical neck area on July 22, 1988 while employed 
 
         by defendant.
 
         
 
              Claimant's injury to her shoulders and cervical neck area is 
 
         a result of her work-related cumulative injury of July 22, 1988.
 
         
 
              Claimant is not currently working and is scheduled for 
 
         cervical neck fusion on November 6, 1989.
 
         
 
              Claimant was willing to work for defendant employer in some 
 
         capacity within her medical restrictions, but defendant did not 
 
         respond favorably.
 
         
 
              Claimant has a mild arthritic condition that is building in 
 
         her body as a natural event, but this preexisting condition was 
 
         lighted up, worsened and materially aggravated by claimant's 
 
         repetitive type of work resulting in the cumulative injury to her 
 
         shoulders and cervical neck area.
 
         
 
              Claimant has not reached maximum healing nor is she able to 
 
         return to work.
 
         
 
              Claimant has incurred a healing period of one day on July 
 
         22, 1988 and a running healing period beginning August 11, 1988 
 
         until claimant reaches maximum healing or is able to return to 
 
         work as provided in Iowa Code section 85.34(1).  Said benefits 
 
         are payable at the rate of $248.39.
 
         
 
              Permanent partial disability, if any, is not determinable at 
 
         this time as claimant has not concluded her healing period.
 
         
 
              Defendant is responsible for payment of claimant's medical 
 
         bills and medical mileage incurred as a result of her July 22, 
 
         1988 injury.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant's cumulative injury on July 22, 1988 arose out of 
 
         and in the course of claimant's employment.
 
         
 
              Claimant's injuries to her shoulders and her cervical neck 
 
         area are causally connected to her cumulative work injury of July 
 
         22, 1988.
 
         
 
                                                
 
                                                         
 
              Claimant's permanent disability, if any, is not determinable 
 
         at this time as claimant has not concluded her healing period.
 
         
 
              Claimant has incurred a healing period of one day on July 
 
         22, 1988 and a running healing period beginning August 11, 1988.
 
         
 
              Defendant is responsible for claimant's medical bills and 
 
         medical mileage expenses incurred to date as a result of her July 
 
         22, 1988 injury and as they are incurred up to her November 1989 
 
         surgery and thereafter as they relate to this injury and 
 
         surgery.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant shall pay unto claimant healing period benefits at 
 
         the rate of two hundred forty-eight and 39/100 dollars ($248.39) 
 
         for one (1) day, July 22, 1988, and beginning August 11, 1988 
 
         until claimant's healing period ends.
 
         
 
              Defendant shall pay accrued weekly benefits in a lump sum 
 
         and shall receive credit against this award for the one thousand 
 
         eight hundred ninety-two and 00/100 dollars ($1,892.00) sick pay 
 
         benefits paid by the defendant and as provided under section 
 
         85.38(2) of The Iowa Code.
 
         
 
              Defendant shall pay interest on the benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              Defendant shall pay the claimant's medical expenses as set 
 
         out in claimant's exhibit C which amount to one thousand three 
 
         hundred two and 00/100 dollars ($1,302.00) and defendant shall 
 
         pay claimant's medical mileage that totals to date two thousand 
 
         seven hundred and thirty-two (2,732) miles and for other medical 
 
         bills and medical mileage as they are incurred by the claimant in 
 
         connection with this injury and her anticipated November, 1989 
 
         surgery.
 
         
 
              Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 6th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                                
 
                                                         
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert E. McKinney
 
         Attorney at Law
 
         480 6th Street
 
         P.O. Box 209
 
         Waukee, Iowa  50263
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa  50312
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 51100, 51108, 1802
 
                                                 Filed November 6, 1989
 
                                                 BERNARD J. O'MALLEY
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHARON NUTT,
 
         
 
              Claimant,
 
                                                      File No. 881041
 
         vs.
 
                                                    A R B I T R A T I 0 N
 
         OSCAR MAYER FOODS CORP.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51100
 
         
 
              Found injury arose out of and in the course of claimant's 
 
         employment.
 
         
 
         51108
 
         
 
              Causal connection found.
 
         
 
         1802
 
         
 
              Claimant awarded a running healing period.  Claimant was 
 
         scheduled for a cervical fusion six weeks from hearing.
 
 
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RON OSTLING,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 881044
 
            AUTO CONVOY COMPANY,     
 
                                                A P P E A L
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
            COMPANY,  
 
                      
 
                 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.
 
            
 
                                     ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  
 
            
 
            Defendant states the following issue on appeal:  "Has 
 
            claimant claimant [sic] proven that his industrial 
 
            disability is greater than the 16.8 percent that defendants 
 
            have already paid"?
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed September 24, 1991 are adopted as final 
 
            agency action.
 
            
 
                            CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed September 24, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            have been intentionally deleted and do not form a part of 
 
            this final agency decision.
 
            
 
            Due to the finding that the prior injury and disability was 
 
            related to claimant's employment, apportionment is not 
 
            proper in this case.  *****  Prior existing impairment does 
 
            not necessarily mandate a finding of a loss of earning 
 
            capacity when there has been no loss of earnings or 
 
            employment.  Compare Bearce v. FMC Corporation, 465 N.W.2d 
 
            531 (Ia. App. 1991).
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants shall pay to claimant 250 weeks of permanent 
 
            partial disability benefits at the rate of five hundred 
 
            twenty-eight and 26/100 dollars ($528.26) per week from 
 
            October 3, 1988.
 
            
 
            That defendants shall pay the stipulated amount of healing 
 
            period benefits pursuant to the correct rate of weekly 
 
            compensation as set forth herein.
 
            
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for all 
 
            voluntary weekly benefits previously paid.
 
            
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            That defendants shall file an activity report upon payment 
 
            of this award as requested by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
                             
 
            
 
                                       ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            Terrace Ctr.,  Ste 111
 
            2700 Grand Ave.
 
            Des Moines, IA 50312
 
            
 
            Mr. Joseph S. Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9999
 
                                               Filed June 30, 1992
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RON OSTLING,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 881044
 
            AUTO CONVOY COMPANY,     
 
                                                 A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed September 24, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RON OSTLING,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 881044
 
            AUTO CONVOY COMPANY,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ron 
 
            Ostling, claimant, against Auto Convoy Co., employer 
 
            (hereinafter referred to as Convoy), and Liberty Mutual, in
 
            surance carrier, defendants, for workers' compensation bene
 
            fits as a result of an alleged injury on May 25, 1988.  On 
 
            September 16, 1991, a hearing was held on claimant's peti
 
            tion 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 ac
 
            cepted 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 received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On May 25, 1988, claimant received an injury which 
 
            arose out of and in the course of his employment with 
 
            Convoy.
 
            
 
                 2.  Claimant's entitlement to healing period benefits 
 
            extends from July 1, 1988 through October 2, 1988, and per
 
            manent partial disability benefits should begin as of 
 
            October 3, 1988.
 
            
 
                 3.  The injury is a cause of some degree of permanent 
 
            industrial disability to the body as a whole, the extent of 
 
            which is in dispute.
 
            
 
                 4.  The parties have stipulated to an incorrect rate.  
 
            Given the stipulation of gross earnings of $945.64 with 
 
            marital status and entitlement to two exemptions, claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            correct rate of weekly compensation according to the commis
 
            sioner's rate booklet for an injury in May 1988 is $528.26.
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                 The parties stated in the prehearing report that defen
 
            dants wish to raise an issue of jurisdiction.  Such an issue 
 
            was raised in prior proceedings in this case but such an 
 
            issue has not been raised since the filing of the petition 
 
            herein in September 1990.  The answer filed to this petition 
 
            and the hearing assignment order for this proceeding does 
 
            not identify jurisdiction as a hearing issue.  The file 
 
            fails to show an attempt to modify the hearing assignment 
 
            order prior to hearing.  Finally, defendants did not discuss 
 
            any jurisdictional issue in their post-hearing brief.  
 
            Therefore, this deputy commissioner will not hear and decide 
 
            any jurisdictional issue.  Such issues cannot be first 
 
            raised at hearing but must first be identified in pleadings 
 
            and at the time of the prehearing conference.  Also, the 
 
            hearing of such an issue would in effect reverse the orders 
 
            of the prehearing deputy.  This deputy commissioner has no 
 
            such authority.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is not necessary to this decision 
 
            as defendants do not appear to place claimant's credibility 
 
            at issue.
 
            
 
                 Claimant is a 52-year-old injured Teamster.  At the 
 
            time of the injury herein, claimant was driving a semi as an 
 
            over-the-road trucker hauling automobiles out of Kansas 
 
            City, Missouri, to destinations in the states of Iowa, 
 
            Nebraska and South Dakota.  Claimant had been trucking autos 
 
            since 1961 except for a five and one-half year period in the 
 
            late 1960's and early 1970's.  As a hauler of automobiles, 
 
            claimant was required to load and unload the vehicles as 
 
            well as to secure these vehicles to the trailer using chains 
 
            and chain tighteners.  This required heavy lifting of the 
 
            chains and heavy pulling, handling and tightening of the 
 
            chains.  Also, claimant indicated that he had to perform a 
 
            considerable amount of climbing on the trailers at times 
 
            when ladders were not available.  At the time of the injury, 
 
            claimant was hauling an average of eight to nine cars in 
 
            each load.
 
            
 
                 Defendants agreed that claimant suffered a work injury 
 
            in May 1988.  The events leading up to the injury were not 
 
            discussed by claimant at hearing.  As a result of the 
 
            injury, claimant underwent surgery in July 1988 and was not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            able to return to work following surgery until October 1988.  
 
            Claimant then attempted to return to the same job as a 
 
            trucker but had to end this work after one week due to back 
 
            pain.  Claimant said that his duties of chaining vehicles 
 
            down, lifting skids and prolonged driving presented the most 
 
            difficulty for him.  Claimant was then assigned by his em
 
            ployer to another job which did not involve driving a truck.  
 
            The job involved yard work in which claimant and others were 
 
            assigned to drive new automobiles from an assembly area ap
 
            proximately one quarter of a mile to a loading area.  
 
            Claimant and other drivers would then return by shuttle bus 
 
            to get another car.  Claimant apparently is able to perform 
 
            this job satisfactorily without problems.  Claimant contin
 
            ues in this job at the present time.
 
            
 
                 Claimant suffered a prior low back injury at work in 
 
            1981.  This injury also resulted in surgery.  There is 
 
            little question in the record that claimant suffered perma
 
            nent partial impairment as a result of both the 1981 and 
 
            1988 work injuries.  According to the uncontroverted views 
 
            of the treating orthopedic surgeon, Sinesio Misol, M.D., who 
 
            performed both surgeries on claimant's back, claimant 
 
            suffers a 10 to 15 percent permanent partial impairment from 
 
            the two work injuries, with each injury contributing equally 
 
            to this permanent impairment.  Subsequent to the 1988 
 
            injury, although Dr. Misol has not imposed specific work re
 
            strictions, the doctor has advised claimant not to return to 
 
            truck driving work and the loading and unloading of semis 
 
            (Joint Exhibit 4, page 8).
 
            
 
                 Despite the back surgery and permanent partial impair
 
            ment, claimant suffered little or no loss of earning capac
 
            ity as a result of the prior injury of 1981.  Claimant 
 
            returned to the same job he was performing at the time of 
 
            the 1981 injury and continued in this job uninterrupted 
 
            until the 1988 injury.  Claimant only left his truck driving 
 
            work after the 1988 injury.  To the extent that claimant 
 
            suffered any permanent partial impairment or any loss of 
 
            earning capacity as a result of the 1981 injury, this prior 
 
            injury and any resulting disability was related to 
 
            claimant's employment.  Therefore, as will be explained in 
 
            the conclusions of law section of this decision, apportion
 
            ment of claimant's current disability based upon such a 
 
            prior work-related injury would be improper.
 
            
 
                 With reference to the extent of claimant's loss of 
 
            earning capacity from the 1988 work injury, claimant is back 
 
            to work.  His current rate of pay is $16.04 per hour which 
 
            includes a night pay differential which claimant says he 
 
            customarily receives.  Claimant stated that he is only three 
 
            or four years from his 30 year retirement and receipt of 
 
            benefits from the Teamster pension fund.  Claimant admitted 
 
            at hearing that he planned on retiring after thirty years 
 
            before the 1988 work injury.  Claimant has not sought other 
 
            work other than his current yard work job.  Claimant appears 
 
            to be waiting for retirement.
 
            
 
                 On the other hand, claimant continues to suffer signif
 
            icant permanent partial impairment and chronic low back 
 
            pain.  Due to this pain and his susceptibility for further 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury, he cannot return to truck driving.  Claimant's only 
 
            significant past work experience has been in truck driving, 
 
            the work that he can no longer perform due to the heavy 
 
            lifting and prolonged driving requirements of these jobs.  
 
            Claimant's other past work has involved freight and baggage 
 
            handling for a major airline, work he, also, can no longer 
 
            perform.  Claimant's vocational rehabilitation potential 
 
            appears quite low given his age of 52 years and the lack of 
 
            formal schooling.  Although claimant did complete his GED in 
 
            the military, he dropped out of high school in the eleventh 
 
            grade.
 
            
 
                 Although claimant's earning potential is over $30,000 a 
 
            year given his hourly rate, claimant said that he was laid 
 
            off this past year.  He has only worked intermittently in 
 
            1991.  Claimant explained that although he was one of the 
 
            highest in seniority as a trucker with Convoy, he lost this 
 
            seniority status in moving to the yard.  Claimant explained 
 
            that he is now seventeenth in seniority among the yard crew 
 
            but Convoy has only been working people who are at least 
 
            fifteenth or sixteenth in seniority ranking.  Claimant is 
 
            not optimistic about the future.  Apparently, this decline 
 
            in available work is not due to economic conditions but due 
 
            to a structural change in the operations of the Ford Motor 
 
            Company, in which new car deliveries to Kansas City has been 
 
            significantly reduced and routed elsewhere.  Claimant's 
 
            testimony in this matter is uncontroverted.
 
            
 
                 Although claimant plans on retiring in three or four 
 
            years, this is dependent upon how much he continues to work 
 
            for Convoy because he must be working in order to earn eli
 
            gibility time for retirement.  Consequently, his layoff 
 
            status will significantly delay his Teamster retirement.  
 
            Although he stated at hearing that even if this yard job 
 
            ends completely, he said that he will attempt to return to 
 
            trucking despite his back problems to prevent a loss of his 
 
            pension benefits.  However, as a result of a recent 
 
            grievance proceeding, claimant states that Convoy has indi
 
            cated to claimant and to the other yard employees at Convoy 
 
            that they would not be able to bid back into a trucking job 
 
            should their yard jobs end.  Claimant was credible and un
 
            controverted on this matter.  However, whether or not Convoy 
 
            would permit such a return to truck driving, it is clear 
 
            that such a return to trucking would violate the work 
 
            restrictions recommended by Dr. Misol.  The undersigned 
 
            doubts Convoy would permit a return to work that would place 
 
            claimant in a job that would likely risk further injury and 
 
            would increase defendants' risk of further liability.
 
            
 
                 Claimant states that at the present time he is losing 
 
            $15,000 to $20,000 in earnings annually as a result of his 
 
            change of job status from trucking to yard work.  Claimant 
 
            placed payroll records into evidence showing that a fellow 
 
            trucker who was hired approximately at the same time as 
 
            claimant and who performed substantially the same work as 
 
            claimant prior to the 1988 injury, earned approximately 
 
            $36,000 between January 1, 1991 through August 3, 1991.  
 
            Claimant over the same period of time only earned approxi
 
            mately $16,000.  Although claimant's loss of earnings  may 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            possibly improve in the future, at the present time at least 
 
            claimant has suffered almost a 60 percent loss of earnings.
 
            
 
                 Finally, at an age of 52, claimant should be in the 
 
            most productive and high income years of his working career.  
 
            His loss of earning capacity as a result of the work injury 
 
            is more than would be the case for a younger or an older 
 
            individual.  Even if claimant would retire in three or four 
 
            years as planned, given his age, the receipt of a pension 
 
            would not necessarily end his working career.  Many 
 
            pensioners at that age begin new careers and other endeav
 
            ors.
 
            
 
                 However, only looking at claimant's present loss of 
 
            earning capacity, claimant has suffered a 50 percent loss of 
 
            earning capacity.  What may or may not happen in the future 
 
            with reference to claimant's yard job and his pension is 
 
            speculative and will not be considered in arriving at this 
 
            decision.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated the work injury was a cause 
 
            of permanent physical impairment or limitation of activity 
 
            involving the body as a whole, the degree of permanent dis
 
            ability.  Therefore, the degree of permanent disability for 
 
            purposes of awarding benefits must be measured pursuant to 
 
            Iowa Code section 85.34(2)(u).  However, unlike scheduled 
 
            member disabilities, the degree of disability under this 
 
            provision is not measured solely by the extent of a func
 
            tional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v. Tri-City Railway Co., 219 Iowa 
 
            587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  The extent to which a work injury 
 
            and a resulting medical condition has resulted in an indus
 
            trial disability is determined from examination of several 
 
            factors.  These factors include the employee's medical con
 
            dition 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 intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, 
 
            Inc., (Appeal Decision, February 28, l985).
 
            
 
                 Due to the finding that the prior injury and disability 
 
            was related to claimant's employment, apportionment is not 
 
            proper in this case.  Apportionment of disability between a 
 
            preexisting condition and an injury is proper only in those 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            situations where a prior injury or illness "unrelated to 
 
            employment" independently produces some ascertainable 
 
            portion of the ultimate disability.  Tussing v. George A. 
 
            Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied 
 
            Enterprises, Inc., v. Sumner, 353 N.W.2d 407 (Iowa 1984).  
 
            Prior existing impairment does not necessarily mandate a 
 
            finding of a loss of earning capacity when there has been no 
 
            loss of earnings or employment.  Compare Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Ia. App. 1991).
 
            
 
                 Both claimant and defendants speculated at hearing as 
 
            to what may happen in the future.  Defendants argue that 
 
            claimant will eventually be called back to full time and in 
 
            any event will retire from the work force when he begins 
 
            receiving his Teamster pension.  Claimant argues that he 
 
            will probably never return to trucking and may not be able 
 
            to draw his pension when he planned.  However, it is only 
 
            claimant's present, not his future, earning capacity which 
 
            is to be measured in awarding permanent disability benefits 
 
            in these proceedings.  Umphress v. Armstrong Rubber Co., 
 
            file number 723184 (Appeal Decision filed August 27, 1987).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 50 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 250 weeks of permanent 
 
            partial disability benefits under Iowa Code section 
 
            85.34(2)(u), which is 50 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant 250 weeks of per
 
            manent partial disability benefits at the rate of five 
 
            hundred twenty-eight and 26/100 dollars ($528.26) per week 
 
            from October 3, 1988.
 
            
 
                 2.  Defendants shall pay the stipulated amount of heal
 
            ing period benefits pursuant to the correct rate of weekly 
 
            compensation as set forth herein.
 
            
 
                 3.  That defendants shall pay accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            all voluntary weekly benefits previously paid.
 
            
 
                 4.  That defendants shall pay interest on weekly bene
 
            fits awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.   That defendants shall pay the costs of this 
 
            action, pursuant to rule 343 IAC 4.33, including reimburse
 
            ment to claimant for any filing fee paid in this matter.
 
            
 
                 6.  That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
                 
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Dennis L Hanssen
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Joseph S Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1803
 
                      Filed September 24, 1991
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RON OSTLING,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 881044
 
            AUTO CONVOY COMPANY,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Fifty-two year old Teamster who cannot return to trucking 
 
            was given yard work estimated to be with a 60 percent loss 
 
            of earnings at the present time.  Claimant was awarded 50 
 
            percent based upon a review of all the factors of industrial 
 
            disability.  Defendants and claimant argued as to what may 
 
            or may not happen in the future with reference to claimant's 
 
            current job and earnings.  These arguments were rejected 
 
            under the Umphress appeal decision in which former 
 
            commissioner David Linquist held that looking into the 
 
            future with reference to earning capacity was speculative 
 
            and improper in these proceedings.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES EARL LEWIS,             :
 
                                          :         File No. 881048
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            J. I. CASE COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, James Earl Lewis, against his employer, J. I. 
 
            Case, self-insured employer, defendant.  The case was heard 
 
            on January 24, 1991, in Burlington, Iowa at the Des Moines 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimony of 
 
            Phillip Michael Evans, foreman at J. I. Case, and the 
 
            testimony of Sue Nelson, benefits administrator at J. I. 
 
            Case.  Finally, the record consists of joint exhibits 1-17.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; and, 4) 
 
            whether claimant tendered proper notice pursuant to section 
 
            85.23 of the Iowa Code.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 38 years old.  He is the divorced father of 
 
            five children.  Claimant has been employed since the age of 
 
            4 when he was hired to pick cotton in the fields.  He is the 
 
            sixteenth child out of 23 siblings.  He completed the ninth 
 
            grade but he left home at age 14 to work in the construction 
 
            trades.
 
            
 
                 Claimant commenced his employment with 
 
            defendant-employer on January 4, 1972.  He was hired as a 
 
            shear helper.  However, later in his employment, claimant's 
 
            status changed to fork truck driver.  He engaged in lifting, 
 
            bending, stooping, standing and sitting.
 
            
 
                 In 1974, claimant experienced problems with his back.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            He sought attention from an orthopedic specialist, Webster 
 
            Gelman, M.D.  Dr. Gelman performed a laminectomy at L3, 4, 
 
            and 5.  Following the surgery, claimant returned to work as 
 
            a fork truck driver.  Periodically, claimant would encounter 
 
            difficulties.
 
            
 
                 In June of 1985, claimant sought treatment for his back 
 
            condition.  He was treated conservatively by Pat Schneider, 
 
            M.D.  Claimant was off work from June 20, 1985 to October 
 
            14, 1985.  During that time claimant received accident and 
 
            sickness weekly benefits.  No workers' compensation benefits 
 
            were requested by claimant.  Claimant's physician, Pat 
 
            Schneider, M.D., wrote on the attending physician's 
 
            statement:  "Did this sickness or injury arise out of 
 
            patient's employment? [ ] yes  [x] no."
 
            
 
                 On January 8, 1987, claimant went to see Dr. Schneider.  
 
            Claimant informed his physician that claimant's back hurt 
 
            during his vacation as he had to drive to Arkansas.  Medical 
 
            notes for Dr. Schneider on that day state:
 
            
 
                 *  Pt. is having a flare of his rt. L4-5 disc.  
 
                 The sciatic notch is tender and reproduces pain 
 
                 into the calf and lat. aspect of the ankle.
 
            
 
                    ....
 
            
 
                 S  Pt. went Xmas to see his fiance in Arkansas, 
 
                 developed a cough.  Returned New Year's Day and 
 
                 had back pain and pain in his calf at that time.  
 
                 Denies any back pain but with prolonged sitting 
 
                 has more rt. calf pain.
 
            O Aa. Pressure in rt. sciatic notch reproduces his 
 
            calf pain.
 
            A Aa. Flare of rt. sciatica secondary to prolonged 
 
            800 mile drive and bronchitis.
 
            
 
            (Exhibit 5, page 4)
 
            
 
                 Claimant was off work as of January 12, 1987.  He 
 
            applied for accident and sickness weekly benefits.  He 
 
            received those benefits through January 8, 1988.
 
            
 
                 On the sickness and accident benefit form, dated 
 
            January 15, 1987, claimant completed the following:
 
            
 
            
 
              5. Was an accident involved: [ ] Yes [x] No  If Yes,                     
 
            please answer the following:
 
            
 
                 (a) When did the accident happen? Date....19...at...} 
 
            a.m.
 
                                                               (hour)} 
 
            p.m.
 
            
 
                 (b) Where did the accident happen? 
 
            City......State........
 
            
 
                 (c) Were you at work when the accident happened? [ ] 
 
            Yes                               [x] No
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            (Ex. 11)
 
            
 
                 Sue Nelson, benefits administrator for 
 
            defendant-employer, completed the bottom portion of exhibit 
 
            ll.  For item six, Ms. Nelson completed the form as follows:
 
            
 
            
 
              6. Was disability sustained in course of employment? [ ] 
 
            Yes                           [x] No ...
 
            
 
                 Dr. Schneider completed a portion of exhibit 11.  He 
 
            wrote in relevant portion on the attending physician's 
 
            statement:
 
            
 
                 Did this sickness or injury arise out of patient's 
 
                 employment? [ ] Yes [x] No
 
            If "YES" explain _________________________________ 
 
            __________________________________________________
 
            
 
                 While claimant was off work in 1987, his symptoms 
 
            worsened.  Dr. Schneider referred claimant to E. A. Dykstra, 
 
            M.D., an orthopedic specialist.  Claimant first saw the 
 
            specialist on May 15, 1987.
 
            
 
                 Claimant completed a patient health questionnaire for 
 
            Dr. Dykstra.  Five written questions were posed to claimant.  
 
            Claimant answered questions 2-4 as follows:
 
            
 
                 2.  DATE OF ONSET:    7   Jan.  87                      
 
            
 
                 3.  IF ACCIDENT OR WORK RELATED STATE EXACTLY HOW 
 
                 IT         HAPPENED: 
 
                 _____________________________________
 
            
 
                 4.  WHAT AGGRAVATES THE PAIN:   Everything         
 
            
 
            (Ex. 1, Deposition Ex. 2)
 
            
 
                 Dr. Dykstra treated claimant conservatively for 
 
            recurrent back pain and right leg pain.  Claimant's 
 
            condition again deteriorated and Dr. Dykstra performed a 
 
            hemilaminectomy at L-5.  After therapy, Dr. Dykstra 
 
            restricted claimant to light duty work.  However, 
 
            defendant-employer had no light duty work available.  
 
            Claimant was unable to return to full time unrestricted 
 
            work.
 
            
 
                 Claimant made application for long-term disability 
 
            benefits through work.  He completed his portion of exhibit 
 
            10 on December 30, 1987.  With respect to question six, 
 
            claimant answered the form as follows:
 
            
 
                 6. (a) Is your disability due to an accident?  
 
                 (Answer          "yes" or "no")
 
               (b) Have you or do you intend to file a claim 
 
            for         Workmen's Compensation benefits?  
 
            Yes
 
            
 
                 As of the date of the hearing, claimant had received 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            sick pay/disability income in the sum of $25,923.53.
 
            
 
                 Claimant also made application to the Social Security 
 
            Administration for disability benefits.  On the face of his 
 
            application, claimant listed December 25, 1986, as the date 
 
            his condition first bothered him.  Claimant also checked 
 
            "no" as the answer to whether he intended to file a workers' 
 
            compensation claim.  Claimant signed the application on 
 
            January 28, 1988.  Claimant testified he was awarded social 
 
            security disability benefits.
 
            
 
                 Claimant testified at his hearing that in 1986 he 
 
            verbally reported to Mike Evans, his supervisor, a work 
 
            related back injury.  Phillip Mike Evans testified at the 
 
            hearing that he had no recollection of claimant ever 
 
            reporting a back injury in either 1986 or early 1987.  
 
            Moreover, Mr. Evans testified that if claimant had 
 
            complained of a back injury, it would have been customary 
 
            for claimant to have been taken to the company nurse or to 
 
            the hospital.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is whether 
 
            defendant-employer had notice of claimant's alleged workers' 
 
            compensation injury.  Section 85.23 of the Iowa Code 
 
            provides:
 
            
 
                 85.23  Notice of injury -- failure to give.
 
              Unless the employer or the employer's 
 
            representative shall have actual knowledge of the 
 
            occurrence of an injury received within ninety 
 
            days from the date of the occurrence of the 
 
            injury, or unless the employee or someone on the 
 
            employee's behalf or a dependent or someone on the 
 
            dependent's behalf shall give notice thereof to 
 
            the employer within ninety days from the date of 
 
            the occurrence of the injury, no compensation 
 
            shall be allowed.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).  Mefferd v. Ed Miller & Sons, Inc., Thirty-Third 
 
            Biennial Report of the Industrial Commissioner 191 (Appeal 
 
            Decision 1977).
 
            
 
                 The time period contemplated in Iowa Code section 85.23 
 
            does not begin to run until the claimant has knowledge of 
 
            the nature of his disability.  Jacques v. Farmers Lbr. & 
 
            Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951).
 
            
 
                 An employer's actual knowledge of occurrence of injury 
 
            must include some information that the injury is 
 
            work-connected in order to satisfy the alternative notice of 
 
            claim requirement.  Robinson v. Department of Transp., 296 
 
            N.W.2d 809, 812 (Iowa 1980).  The interpretation in Robinson 
 
            was confirmed in Doerfer Division of CCA v. Nicol, 359 
 
            N.W.2d 428, 435 (Iowa 1984).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 A claimant's duty to give notice of injury arises when 
 
            the claimant should recognize the nature, seriousness and 
 
            probable compensable character of his injury or disease.  
 
            The reasonableness of claimant's conduct is to be judged in 
 
            light of his education and intelligence. Claimant must know 
 
            enough about the injury or disease to realize that it is 
 
            both serious and work-connected, but positive medical 
 
            information is unnecessary if he has information from any 
 
            source which puts him on notice of its probable 
 
            compensability.  Robinson, supra.
 
            
 
                 The purpose of the 90 day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the acts of the injury.  Id.:  Knipe v. Skelgas 
 
            Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940); Hobbs v. 
 
            Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. 
 
            City of Sioux City, 368 N.W.2d 176 (Iowa 1985).  Koopmans v. 
 
            Iowa Electric Light and Power Company, (Appeal Decision 
 
            dated December 30, l981) on appeal to Iowa Supreme Court).
 
            
 
                 The word "compensable" in the workers' compensation 
 
            notice context is not used to connote legal knowledge that a 
 
            claim is within the workers' compensation act.  Rather, 
 
            "compensable" means that the disabling injury was work 
 
            connected.  Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 
 
            (Miss. 1979).
 
            
 
                 Unless a statute that imposes a period of limitations 
 
            expressly authorizes exceptions for extenuating 
 
            circumstances, it must be applied uniformly even though the 
 
            result may be harsh.  Burgess v. Great Plains Bag 
 
            Corporation, 409 N.W.2d 676, 679 (Iowa 1987).
 
            
 
                 A mistake of law is no more an excuse in connection 
 
            with a late compensation claim than anywhere else, unless 
 
            expressly made so by statute.  3 Larson, Workmen's 
 
            Compensation Law, Section 78.47 at 15-334.
 
            
 
                 The initial determination in the instant case, is 
 
            whether claimant has given notice of his claim to his 
 
            employer under section 85.23.  The statute allows for two 
 
            types of notice.
 
            
 
                 The first type of notice is actual knowledge of the 
 
            occurrence of an injury within 90 days.  The second type of 
 
            notice allowed by statute is notice given to the employer by 
 
            the injured employee within 90 days from the date of the 
 
            occurrence of the injury.
 
            
 
                 In the case at hand, claimant alleges he sustained a 
 
            cumulative injury to his back.  In McKeever Custom Cabinets 
 
            v. Smith, 379 N.W.2d 368 (Iowa 1985), the Court instituted 
 
            the "cumulative injury rule."  The Court in McKeever, 
 
            determined that both the two-year statute of limitations 
 
            (section 85.26(1)) and the 90 day notice under section 85.23 
 
            run from the same day.  That day is the day of the injury.  
 
            Id. at 375.  The McKeever court held that where a disability 
 
            was caused by a work activity, which was gradual and 
 
            progressive in nature, the date of the "injury" was the date 
 
            on which the claimant, due to pain, was unable to continue 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            working.  Id.  (Also See Craft v. John Morrell & Company, 
 
            Ct. of Appeals No. 89-369, citing McKeever)
 
            
 
                 On January 8, 1987, claimant, due to pain, was no 
 
            longer able to work at defendant-employer's establishment.  
 
            Under section 85.23, and under McKeever, the 90 day period 
 
            began to run from January 8, 1987.  It is evident to the 
 
            undersigned that no notice was tendered to defendant within 
 
            those 90 days.  The evidence is overwhelming.  During the 
 
            aforementioned period, claimant expressly denied the injury 
 
            was work related.  Moreover he notified his physician, Dr. 
 
            Schneider, the problems developed over the Christmas 
 
            holidays when he traveled 800 miles to vacation in Arkansas.  
 
            Claimant also completed the application for sickness and 
 
            accident benefits where he checked on the form that the 
 
            injury did not occur while he was at work.  Claimant also 
 
            testified at the hearing there was a specific trauma at work 
 
            which occurred in late 1986 which injured his back.  This is 
 
            directly contrary to claimant's cumulative injury theory.  
 
            Claimant's credibility is put into question.
 
            
 
                 Claimant alleges he did not discover the cause of his 
 
            herniated disc until November 3, 1987, and that once he 
 
            "discovered" that his injury was work related, he tendered 
 
            notice to his employer on December 30, 1987, that he 
 
            intended to file a workers' compensation claim.  It is 
 
            acknowledged that as of December 30, 1987, defendant had 
 
            actual notice of claimant's workers' compensation claim.  
 
            However, it is clear to the undersigned that prior to 
 
            November 3, 1987, claimant had every reason to discover his 
 
            injury could have been work related.  Dr. Dykstra discussed 
 
            with claimant his job as a contributing or causative factor.  
 
            According to Dr. Dykstra's testimony, the physician 
 
            discussed the role of claimant's job with claimant on each 
 
            clinical visit from August of 1985 onward.  Claimant ignored 
 
            Dr. Dykstra's discussions.  Nevertheless, claimant, despite 
 
            the physician's discussions, failed to tender notice of a 
 
            workers' compensation claim until more than 11 months after 
 
            the injury date.  The eleven month period far exceeds the 90 
 
            day period allowable to tender notice.
 
            
 
                 It is the determination of this deputy that proper 
 
            notice under section 85.23 was not tendered to the employer 
 
            within the 90 day period.  Claimant should have discovered 
 
            his injury was work related.  Claimant did not comply with 
 
            the provisions of section 85.23.  Therefore, compensation 
 
            under the Iowa workers' compensation laws is not allowed.
 
            
 
                 Since section 85.23 disposes of this case, other issues 
 
            are moot.  Additional discussion is unnecessary.
 
            
 
                                      order
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Defendant pays the cost of these proceedings pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1991.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven J. Crowley
 
            Attorney at Law
 
            100 Valley St
 
            P O Box 517
 
            Burlington  IA  52601
 
            
 
            Mr. William J. Cahill
 
            Attorney at Law
 
            200 Jefferson St
 
            P O Box 1105
 
            Burlington  IA  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2800, 2801, 2802
 
                           Filed July 30, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES EARL LEWIS,             :
 
                                          :         File No. 881048
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            J. I. CASE COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            2800; 2801; 2802
 
            Claimant alleged a work induced cumulative trauma injury.  
 
            Claimant, due to pain, was no longer able to work at 
 
            defendant-employer's establishment as of January 8, 1987.  
 
            No notice was tendered to defendant within those 90 days.  
 
            During the aforementioned time period, claimant expressly 
 
            denied the injury was work related.  Claimant notified his 
 
            treating physician his back condition developed over the 
 
            Christmas holidays when he traveled 800 miles to vacation in 
 
            Arkansas.  Claimant also completed an application for 
 
            sickness and accident benefits where he checked on the form 
 
            that the injury did not occur while he was at work.
 
            Claimant alleged he did not discover the cause of his 
 
            herniated disk until November 3, 1987, and that once he 
 
            "discovered" that his injury was work related, he tendered 
 
            notice to his employer on December 30, 1987.
 
            Held:  Claimant did not tender notice pursuant to section 
 
            85.23.  Notice was not tendered within 90 days of the 
 
            alleged injury.