BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD L. WEILAND,
 
                                               File Nos. 883500 & 876589
 
              Claimant,
 
                                                 A R B I T R A T I 0 N
 
         vs.
 
                                                    D E C I S I O N
 
         WILSON FOODS CORPORATION,
 
                                                       F I L E D
 
              Employer,
 
              Self-Insured,                           JAN 16 1990
 
              Defendant.
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Ronald Weiland, 
 
         claimant, against Wilson Foods Corporation, self-insured 
 
         employer, defendant.  The cases were heard by the undersigned in 
 
         Storm Lake, Iowa on November 21, 1989.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimonies of Colleen Sue Weiland 
 
         and Michael Payne.  Additionally, the record consists of joint 
 
         exhibits 1-18.
 
         
 
              Subsequent to the hearing, claimant moved to amend petition 
 
         No. 883500 to reflect an injury date of August 15, 1987.  The 
 
         motion was granted.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That claimant sustained an injury on January 4, 1988, 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3.  That the alleged injury is a cause of temporary and 
 
         permanent disability as to the injury on January 4, 1988;
 
         
 
              4.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendant is 
 
         liable for the injury, is stipulated to be from February 15, 1988 
 
         to April 24, 1988;
 
         
 
              5.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole; the commencement 
 
         date for permanent partial disability, in the event such benefits 
 
         are awarded, is stipulated to be April 25, 1988;
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              6.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $255.35 per week; and,
 
         
 
              7.  Defendant paid claimant 10 weeks of compensation at the 
 
         rate of $255.35 per week prior to hearing.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on November 21, 1989, the issues presented by the 
 
         parties are:
 
         
 
              1.  Whether claimant received an injury on August 15, 1987 
 
         which arose out of and in the course of claimant's employment;
 
         
 
              2.  Whether there is a causal relationship between the 
 
         alleged injury of August 15, 1987 and the claimed disability;
 
              
 
              3.  Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits as a result of the alleged injury of August 
 
         15, 1987; and,
 
         
 
              4.  The nature and extent of temporary or permanent partial 
 
         disability benefits to which claimant is entitled as a result of 
 
         his injury of January 4, 1988.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 52 years old.  He has worked for defendant on 
 
         three separate occasions.  The last occasion started in 1978. 
 
         Claimant is currently employed by defendant.
 
         
 
              Claimant testified that on August 15, 1987, he was working 
 
         in the sausage department and setting up for the night crew.  He 
 
         stated he was attempting to connect a heavy rotating belt to 
 
         another belt when he hurt his back.  Claimant indicated he 
 
         reported the incident to his foreman, Keith Grower.  Claimant 
 
         also stated he reported to the nurse's station for medical 
 
         attention. Later, claimant said he sought chiropractic treatment 
 
         on his own.
 
         
 
              Claimant also testified the same incident occurred on 
 
         January 4, 1988.  He was referred to Dennis L. Johnson, M.D., by 
 
         the company nurse.  Claimant testified he was prescribed 
 
         medication and given exercises to perform.
 
         
 
              Claimant indicated he currently experiences low back pain.  
 
         He states it is usually a dull pain.  He stated he is able to 
 
         hold a job at defendant's establishment but that the job is a 
 
         lighter position at base pay only.  Claimant testified that prior 
 
         to his injury on January 4, 1988, he was able to handle a 
 
         position which carried a $.20 increase over the base pay.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Michael Payne, the personnel director, testified for 
 
         defendant.  He reported new jobs with $.20 to $.30 per hour 
 
         increases have been offered to claimant and his co-workers.  Mr. 
 
         Payne stated claimant has been accepted for the new position.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on August 15, 1987 and January 
 
         4, 1988, which arose out of and in the course of his employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St  Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 15, 1987 and January 4, 
 
         1988 are causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact. Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).  For example, a defendant employer's refusal to 
 
         give any sort of work to a claimant after he suffers his 
 
         affliction may justify an award of disability.  McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable. 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he sustained an injury on August 15, 1987 which arose out of and 
 
         in the course of his employment.  Claimant described the 
 
         incident. He provided the details of the events surrounding his 
 
         injury. Claimant's medical history supports claimant's 
 
         contentions that he was injured in August of 1987.
 
         
 
              Dennis L. Johnson, M.D., attributes claimant's condition to 
 
         his injury of August 15, 1987.  Dr. Johnson, in his letter of May 
 
         31, 1989, writes the following:
 
         
 
              In reviewing my records on this patient, in his history he 
 
              states that he first experienced his low back pain while 
 
              changing a heavy conveyor belt in August of 1987 at work at 
 
              the Wilson Plant.
 
         
 
              In July of 1989, Dr. Johnson elaborates in a letter to 
 
         claimant's attorney:
 
         
 
              Yes, I believe that my findings after examining Mr. Weiland 
 
              are consistent with the history Mr. Weiland gave me in 
 
              regards to the August 1987 injury at Wilson Foods.
 
         
 
              In light of the foregoing, it is the determination of the 
 
         undersigned that claimant's work injury of August 15, 1987 is 
 
         causally related to claimant's alleged condition.  However, it is 
 
         this deputy's decision that claimant's August injury did not 
 
         cause claimant to sustain any temporary or permanent disability.  
 
         The bases for that decision are that claimant did not miss any 
 
         work time until after the work injury of January 4, 1988.  Also, 
 
         claimant did not seek medical attention until after the injury of 
 
         January 4, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties in the instant case stipulated that claimant's 
 
         injury of January 4, 1988, resulted in both temporary and 
 
         permanent disability.  The parties stipulated that claimant is 
 
         entitled to healing period benefits from February 15, 1988 to 
 
         April 24, 1988.  This period is comprised of 9.857 weeks.
 
         
 
              The final issue to address is the nature and extent of 
 
         claimant's permanent disability.  Dr. Johnson, the treating 
 
         orthopedic physician, determined the following with respect to 
 
         claimant's condition:
 
         
 
              The patient does have a grade 1 degenerative 
 
              spondyololisthesis [sic] of L5 on S1 with lipping anteriorly 
 
              at L4-5 and L5,S1.
 
         
 
              It is my opinion that the patient does have a permanent 
 
              partial physical impairment rating of 6 percent of the 
 
              lumbar spine equal to 6 percent of the whole man.
 
         
 
              Scott B. Neff, D.O., an orthopedic physician, examined 
 
         claimant for the purpose of providing an impairment evaluation. 
 
         Dr. Neff wrote in his joint letter with Thomas W. Bower, L.P.T.:
 
         
 
              He continues to complain of pain and discomfort when he gets 
 
              into certain positions and he feels a catching sensation.  
 
              He has constant pain in his low back but no radicular pain 
 
              on either side.  Range of motion studies show full range of 
 
              motion for the trunk.  The patient is currently working in 
 
              the Sausage Department at Wilson Foods.  The patient is 
 
              somewhat frustrated and indicates that he does not feel that 
 
              he is improving and wants answers.  He has been told by Dr. 
 
              Blume, a neurologist in the Sioux City area, that he has two 
 
              ruptured discs and since he is working presently, he would 
 
              not recommend surgery at this time.  He has also been told 
 
              that he needs a fusion.
 
         
 
              We have no additional medical nor any CAT scan or x-ray 
 
              information at this time to either prove or disprove the 
 
              fact that he has two herniated discs.  The mere fact that he 
 
              has full range of motion, and essentially the only basis 
 
              that we have at this time for rating, there would be no 
 
              percentage of impairment.  However, if the patient does have 
 
              in fact two ruptured discs, the patient would have sustained 
 
              a 7% impairment to the body as a whole.  Hopefully the 
 
              information regarding the diagnostic studies will be 
 
              forwarded to Dr. Neff and we can further elaborate on this 
 
              at this time.
 
         
 
              In June of 1989, Dr. Neff determined:
 
         
 
              Consequently, it is my opinion that this patient, based on 
 
              the x-ray reports that we have and his physical examination, 
 
              has a total of a 10 percent impairment to his body as a 
 
              whole as a result of his combined back problem, that problem 
 
              being the combination of a herniated disc at L5-S1, and a 
 
              spondylolysis at L5-S1.  In my opinion, the impairment which 
 
              would be attributed to his work activity, based on the 
 
              history, would be 5 percent to the body as a whole.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also examined for purposes of providing an 
 
         impairment evaluation by Horst G. Blume, M.D., a neurosurgeon.  
 
         Dr. Blume, after examining claimant, wrote in his letter of May 
 
         3, 1989:
 
         
 
              It is my opinion, within reasonable medical probability that 
 
              since the patient has two ruptured discs, he has a 
 
              permanent/partial impairment to the body as a whole of 25% 
 
              and this percentage is related to the work related accidents 
 
              at Wilson Packing Company as described in this letter, but 
 
              the spondylolysis and spondylolisthesis pre-existed prior to 
 
              the accidents.  It is also my opinion that the patient 
 
              should definitely avoid lifting except 20 pounds 
 
              occasionally in order to avoid aggravation of his pain 
 
              condition.
 
         
 
              After reviewing all of the medical evidence, it is the 
 
         determination of the undersigned that greater weight is given to 
 
         the opinion of Dr. Johnson.  He was the treating physician.  He 
 
         had seen claimant on numerous occasions.  The other physicians 
 
         were not retained for treatment purposes.  They were retained 
 
         only for purposes of evaluation.  Therefore, it is determined 
 
         claimant has a functional impairment of six percent.
 
         
 
              Claimant argues he has an industrial disability.  He 
 
         maintains there has been a loss of earnings and a loss of earning 
 
         capacity.  Claimant asserts that because he has recently been 
 
         working at a position which only pays a base rate, he has 
 
         sustained a loss of earnings and a loss of earning capacity. 
 
         Defendant argues that claimant has bid upon and obtained a two 
 
         bracket job which is waiting for claimant.  Claimant can have the 
 
         position with a two week trial period.
 
         
 
              It is the determination of the undersigned that claimant is 
 
         industrially disabled.  Claimant has been placed under certain 
 
         work restrictions relative to lifting.  He is only able to lift 
 
         on an occasional basis.  Claimant had been unable to work two and 
 
         three bracket positions for a period of time.  The evidence now 
 
         demonstrates claimant is assuming a position with his fellow 
 
         workers which will provide for four to six brackets above the 
 
         base pay level.  Employment records for claimant demonstrate that 
 
         up to the time of the hearing, he was able to work all but four 
 
         weeks in 1989.  In light of the foregoing, it is the decision of 
 
         the undersigned that claimant has sustained a permanent partial 
 
         disability in the sum of 10 percent.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              Finding 1.  Claimant sustained a back injury arising out of 
 
         and in the course of his employment on August 15, 1987.
 
         
 
              Finding 2.  Claimant sustained a back injury arising out of 
 
         and in the course of his employment on January 4, 1988.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Finding 3.  Claimant did not sustain any temporary or 
 
         permanent disability as a result of the work injury on August 15, 
 
         1987.
 
         
 
              Finding 4.  As a result of the work injury on January 4, 
 
         1988, claimant has an attributable functional impairment of six 
 
         percent of the body as a whole.
 
         
 
              Finding 5.  As a result of his work injury on January 4, 
 
         1988, claimant missed work from February 15, 1988 to April 24, 
 
         1988.
 
         
 
              Conclusion A.  Claimant has met his burden of providing he 
 
         has a 10 percent permanent partial disability as a result of his 
 
         injury on January 4, 1988.
 
         
 
              Conclusion B.  Claimant has met his burden of proving he has 
 
         healing period benefits due to him for 9.859 weeks.
 
         
 
              Conclusion C.  Claimant has failed to meet his burden of 
 
         proof relative to any temporary or permanent disability because 
 
         of his work injury of August 15, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant fifty (50) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred fifty-five and 35/100 dollars ($255.35) per 
 
         week as a result of the injury on January 4, 1988.
 
         
 
              Defendant is to also pay nine point eight-five-seven (9.857) 
 
         weeks of healing period benefits at the stipulated rate of two 
 
         hundred fifty-five and 35/100 dollars ($255.35) per week as a 
 
         result of the injury on January 4, 1988.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Costs of the action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 16th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box 1194
 
         Sioux City, IA  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine St.
 
         Cherokee, IA  51012
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108; 5-1803
 
                                            Filed January 16, 1990
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD L. WEILAND,
 
                                            File Nos. 883500 & 876589
 
              Claimant,
 
                                              A R B I T R A T I 0 N
 
         vs.
 
                                                D E C I S I 0 N
 
         WILSON FOODS CORPORATION,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
              Claimant awarded 10 percent permanent partial disability for 
 
         an injury to claimant's back.  Claimant was able to return to 
 
         work but at a position which only paid a base rate.  Claimant, at 
 
         the time of the injury, was to be given a new position which paid 
 
         above the base pay level.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 SVSAN PALMER-ATTARI,           
 
 
 
      Claimant, 
 
                                                          
 
 vs.
 
 
 
 BANKERS LIFE & CASUALTY CO.,                  FILE NO. 883503
 
                                                A P P E A L
 
      Employer,
 
                                              D E C I S I O N
 
 and
 
 
 
 ARGONAUT INSURANCE COMPANIES, 
 
 
 
      Insurance Carrier,
 
      Defendants.
 
 
 
 
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal. The decision of the deputy filed 
 
 October 11, 1990 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 Defendants shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 
 
 
 Signed and filed this 21st day of August, 1992.
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Ronald L. Anderson
 
 Attorney at Law
 
 600 Midland Building
 
 206 6th Avenue
 
 Des Moines, Iowa  50309
 
 
 
 Mr. Harry W. Dahl
 
 Attorney at Law
 
 974 73rd Street
 
 Suite 16
 
 Des Moines, Iowa  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed August 21, 1992
 
                                                 BYRON K. ORTON
 
                               
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                               
 
 SUSAN PALMER-ATTARI,
 
 
 
        Claimant,
 
 
 
 vs .
 
                                                  File No. 883503
 
 BANKERS LIFE & CASUALTY CO.,
 
                                                   A P P E A L
 
        Employer,
 
                                                 D E C I S I O N
 
 and
 
 
 
 ARGONAUT INSURANCE COMPANIES, 
 
 
 
        Insurance Carrier, 
 
        Defendants.
 
        
 
        
 
 9998
 
 
 
 Summary affirmance of deputy's decision filed October 11, 
 
 1990 .
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT M. SCHOON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File Nos. 883508,
 
            STYLECRAFT, INC.,             :         809961 & 796895
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            TRAVELERS INSURANCE COMPANY   :
 
            and STANDARD FIRE INSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Robert M. Schoon, claimant, against Stylecraft 
 
            Inc., employer (hereinafter referred to as Stylecraft).  In 
 
            case numbers 796895 and 809961 there is a claim against 
 
            Stylecraft as insured by Standard Fire Insurance Company (an 
 
            appendage of Aetna Casualty & Surety) for workers' compensa
 
            tion benefits as a result of alleged injuries on May 14, 
 
            1985 and November 7, 1985.  Case number 883508 involves a 
 
            claim against the Second Injury Fund as a result of an 
 
            alleged work injury on January 16, 1987.  A third claim 
 
            against Stylecraft in this case as insured by Travelers 
 
            Insurance Company due to the alleged January 16, 1987 injury 
 
            was settled prior to hearing.  On August 28, 1990, a hearing 
 
            was held on the consolidated proceedings against Stylecraft 
 
            as insured by Standard Fire Insurance Company and the Second 
 
            Injury Fund and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The testimony and written exhibits received during 
 
            the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Stylecraft at all times material herein.
 
            
 
                 2.  If defendant Stylecraft is held liable for the 
 
            alleged injuries, the parties stipulate that claimant has 
 
            been paid his entitlement to temporary total 
 
            disability/healing period benefits.  Claimant is not seeking 
 
            additional temporary total disability or healing period 
 
            benefits in this proceeding.
 
            
 
                 3.  If permanent disability benefits are awarded as a 
 
            result of the November 7, 1985 alleged injury, they shall 
 
            begin on January 14, 1987.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $268.47 for the alleged injury of November 7, 1985.
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to permanent 
 
            disability benefits; and, 
 
            
 
                 III.  The extent of claimant's entitlement to benefits 
 
            from the Second Injury Fund.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Stylecraft from 1980 until 1989 at 
 
            which time he was terminated because no work was available 
 
            at Stylecraft within his physician imposed work restric
 
            tions.  Claimant was an upholsterer at the plant in Milford, 
 
            Iowa.  He earned approximately $10.63 per hour in this job 
 
            at the time of the alleged injury on November 7, 1985.  
 
            Although claimant was receiving incentive pay, his earnings 
 
            averaged $425.00 a week over 40 hours.
 
            
 
                 On or about May 14, 1985, claimant suffered an injury 
 
            which arose out of and in the course of his employment.  
 
            Claimant injured his left arm while grabbing a chair which 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            had slipped off a work bench.  Claimant was treated by a 
 
            physician who diagnosed that he suffered either a tear or a 
 
            strain of the tendon near the elbow.  Claimant was off work 
 
            for one week and four days and returned to work to full 
 
            duty.  Claimant could not recall the specific events of the 
 
            injury at hearing and stated that he did not suffer any con
 
            tinuing or lingering problems with his arm following his 
 
            recovery and returned to work.  An opinion from a physician 
 
            that this injury caused permanent impairment has not been 
 
            offered into the evidence.  Therefore, claimant has failed 
 
            to show by the evidence that he suffered permanent partial 
 
            impairment or permanent disability as a result of the injury 
 
            of May 14, 1985.
 
            
 
                 On or about November 7, 1985, claimant suffered another 
 
            injury which arose out of and in the course of his employ
 
            ment at Stylecraft.  This time, claimant injured his right 
 
            shoulder while lifting and sliding a chair.  Claimant was 
 
            initially treated by his family doctor but was later 
 
            referred to an orthopedic surgeon, J. Michael Donohue, M.D.  
 
            Dr. Donohue diagnosed impingement of the right shoulder and 
 
            after a 10 week period of conservative care, surgery became 
 
            necessary and was performed on January 13, 1986.  This 
 
            surgery involved removal of a portion of the acromion, a 
 
            bone under which the rotator cuff of the shoulder moves; 
 
            removal of the ligament under the acromion; and, removal of 
 
            an abnormally thicken bursa, a membrane between the rotator 
 
            cuff and the acromion.  Following recovery from this 
 
            surgery, claimant was allowed to return to work part-time on 
 
            February 26, 1986  He was later released to full duty on 
 
            April 16, 1986, without restrictions.  Claimant returned to 
 
            his original job.  Claimant's earnings remain unchanged 
 
            after his full recovery until January 16, 1987.
 
            
 
                 On or about January 16, 1987, claimant suffered a third 
 
            injury which arose out of and in the course of his employ
 
            ment at Stylecraft.  This injury involved his left shoulder.  
 
            Claimant was treated by Dr. Donohue for this injury as well.  
 
            Dr. Donohue diagnosed impingement of the left shoulder and 
 
            found it necessary to operate on this shoulder on two occa
 
            sions.  The first surgery was performed on June 10, 1987.  
 
            This surgery was similar to the surgery performed on the 
 
            right shoulder.  Claimant, however, continued to have prob
 
            lems and Dr. Donohue diagnosed a rotator cuff tear which was 
 
            surgically repaired in March of 1988.  Following recovery 
 
            from these surgeries, claimant was released to return to 
 
            work but with a restriction against repetitive use of both 
 
            of the shoulders and against over head use of his arms.  
 
            Claimant was placed on various light duty jobs by Stylecraft 
 
            but was eventually terminated because there was no work 
 
            available within these restrictions.
 
            
 
                 As a result of the work injury of November 7, 1985, 
 
            claimant has a 10 percent permanent partial impairment to 
 
            the body as a whole.  These findings are based upon the 
 
            uncontroverted views of the only treating orthopedic sur
 
            geon, Dr. Donohue.  Although Dr. Donohue stated that 
 
            impingement syndrome results from cumulative trauma over 
 
            time, it was the last incident on November 7, 1985 in this 
 
            process which precipitated his treatment and the permanent 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            partial impairment and corrective surgery clearly extended 
 
            beyond the arm.  The parts of the body affected constituted 
 
            a portion of the socket of the ball and socket shoulder 
 
            joint.  Although Dr. Donohue released claimant to return to 
 
            work without restrictions in 1986, the doctor stated in his 
 
            deposition that he has now changed his mind and feels it is 
 
            necessary to impose a restriction against repetitive use of 
 
            the right shoulder as well.  Again, this opinion is uncon
 
            troverted.
 
            
 
                 As a result of the work injury of November 7, 1985, 
 
            claimant has suffered a 20 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and he had no ascertainable functional impairments 
 
            or ascertainable disabilities.  Claimant was able to fully 
 
            perform physical tasks involving heavy lifting and repeti
 
            tive use of his arms below and above his head.  Although 
 
            claimant was able to return to work to his upholstery job 
 
            for a period of time in 1986, he could not do so today 
 
            because of the added restriction now placed upon the use of 
 
            his right shoulder by Dr. Donohue.  Therefore, his inability 
 
            to return to work at Stylecraft is in part due to the 
 
            November 7, 1985 injury.  Claimant is 42 years of age.  
 
            Claimant has a high school education.  Claimant's past 
 
            employment primarily consists of heavy manual labor in farm
 
            ing, trucking, heavy equipment operation and carpentry.  
 
            Claimant was able to continue an outside carpentry business 
 
            for a period of time prior to the January 16, 1987 injury, 
 
            but with the added restriction placed upon him now by Dr. 
 
            Donohue, this is not possible.  Therefore, claimant's 
 
            inability to continue functioning as a carpenter is again 
 
            partly due to the November 7, 1985 injury.  Claimant has 
 
            secured replacement employment as a manager of a building 
 
            department of a large store in Spirit Lake, Iowa.  Claimant 
 
            currently earns approximately $2,200.00 a month in this job 
 
            but must work 65 hours a week on average.  Therefore, he has 
 
            a net loss in his hourly rate.  It should be noted that the 
 
            finding of industrial disability as a result of the November 
 
            7, 1985 injury is only that portion which was contributed by 
 
            that injury.  The industrial disability as a result of the 
 
            January 1987 injury was apportioned out.
 
            
 
                 It is further found that although the injuries on 
 
            November 7, 1985 and January 16, 1987 involved the right and 
 
            left shoulder and extended into the body as a whole, they 
 
            also involved an injury to the right and left arm respec
 
            tively.  However, it is also found that the combined effect 
 
            of both injuries does not result in a loss of earning capac
 
            ity in excess of the sum of the loss of earning capacities 
 
            suffered by claimant from each injury.  The second injury on 
 
            January 16, 1987 was equal in the nature and extent of dis
 
            ability to the first injury on November 7, 1985.  Claimant 
 
            failed to show by a preponderance of the evidence that the 
 
            loss of heavy use of both of his arms would be any more dis
 
            abling than the loss of heavy use of the dominant right arm 
 
            in his occupations as upholsterer or carpenter.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered two distinct injuries on November 7, 1985 and January 
 
            16, 1987 to the body as a whole.  The analysis of whether an 
 
            injury extends beyond a scheduled member in the body as a 
 
            whole is largely an anatomical analysis to locate the body 
 
            part affected.  The evidence clearly revealed the injury 
 
            extended beyond the upper head of the arm bone.  See Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
            569 (1943).
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal 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 condi
 
            tion 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, imme
 
            diately 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 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).
 
            
 
                 In the case sub judice, it was found that claimant has 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            suffered a 20 percent loss of earning capacity as a result 
 
            of the work injury of November 7, 1985.  Based upon such a 
 
            finding, claimant is entitled as a matter of law to 100 
 
            weeks of permanent partial disability benefits under Iowa 
 
            Code section 85.34(2)(u) which is 20 percent of 500 weeks, 
 
            the maximum allowable for an injury to the body as a whole 
 
            in that subsection.
 
            
 
                 III.  Claimant also seeks additional disability bene
 
            fits from the second injury fund under Iowa Code sections 
 
            85.63 through 85.69.  There are three requirements under the 
 
            statute to invoke Second Injury Fund liability.  First, 
 
            there must be a permanent loss or loss of use of one hand, 
 
            arm, foot, leg or eye.  Secondly, there must be a permanent 
 
            loss or loss of use of another such member or organ through 
 
            a compensable subsequent injury.  Third, there must a perma
 
            nent industrial disability to the body as a whole arising 
 
            from both the first and second injuries which is greater in 
 
            terms of relative weeks of compensation then the sum of the 
 
            scheduled allowances for those injuries.
 
            
 
                 Defendants contend that the Fund is not liable as 
 
            claimant has only shown injuries to the shoulders or to the 
 
            body as a whole which do not invoke Fund liability under 
 
            Iowa Code section 85.64.  However, the cases cited by the 
 
            Fund all were decided prior to the decision of Second Injury 
 
            Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989) and a companion 
 
            case Fulton v. Jimmy Dean Meat Co., Filed July 23, 1986 
 
            (Appeal Decision), which interpreted the decision in Second 
 
            Injury Fund v. Mich Coal Co., 274 N.W.2d 300, 304 (Iowa 
 
            1979).  In these cases, it was recognized by this agency 
 
            that an injury to one of the body members invoking Fund lia
 
            bility under Iowa Code section 85.64 could extend into the 
 
            body as a whole.  There is no condition precedent that both 
 
            of the injuries invoking Fund  liability be only injuries 
 
            solely compensable as scheduled under 85.34(2)(a thru t).
 
            
 
                 In the case sub judice, claimant has shown separate 
 
            injuries to the right and left extremities each resulting in 
 
            permanent partial disability thereby satisfying the first 
 
            two requirements for Fund liability.  However, claimant 
 
            failed to satisfy the third requirement by a showing that 
 
            the combined effect of both industrial disabilities was 
 
            greater than the sum of the industrial disabilities arising 
 
            from each injury.  Therefore, the claim against the Fund 
 
            must be denied as the Fund's liability is apportioned out as 
 
            required by the recent supreme court decision in Second 
 
            Injury Fund v. Braden, (No. 89-1193) Filed July 18, 1990.
 
            
 
                                      order
 
            
 
                 1.  The claim against the Second Injury Fund in case 
 
            number 883508 is denied with costs under Division of 
 
            Industrial Services Rule 343 IAC 4.33 assessed against the 
 
            claimant.
 
            
 
                 2.  With reference to case number 809961, defendant, 
 
            Stylecraft, as insured by Standard Fire Insurance Company, 
 
            shall pay to claimant one hundred (100) weeks of permanent 
 
            partial disability benefits at the rate of two hundred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            sixty-eight and 47/l00 dollars ($268.47) per week from 
 
            January 14, 1987.
 
            
 
                 3.  With reference to case number 796895, the claim for 
 
            additional disability benefits is denied.
 
            
 
                 4.  Defendant, Stylecraft, as insured by Standard Fire 
 
            Insurance Company, shall pay accrued weekly benefits in a 
 
            lump sum and shall pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendant, Stylecraft, as insured by Standard Fire 
 
            Insurance Company, shall pay the costs in case numbers 
 
            796895 and 809961 pursuant to Division of Industrial 
 
            Services Rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendant, Stylecraft, as insured by Standard Fire 
 
            Insurance Company, shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to Division of Industrial Services Rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St
 
            P O Box 455
 
            Spirit Lake  IA  51360
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Floor Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. James M. Cosgrove
 
            Mr. James P. Comstock
 
            Attorneys at Law
 
            1109 Badgerow Bldg
 
            P O Box 1828
 
            Sioux City  IA  51102
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 3202
 
                           Filed November 28, 1990
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT M. SCHOON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File Nos.  883508,
 
            STYLECRAFT, INC.,             :         809961 & 796895
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            TRAVELERS INSURANCE COMPANY   :
 
            and STANDARD FIRE INSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Extent of permanent partial disability benefits.
 
            
 
            3202
 
            It was held that there is no condition precedent that both 
 
            of the injuries invoking Fund liability under 85.64 be 
 
            injuries solely compensable as scheduled under 
 
            85.34(2)(a thru t).  The Second Injury Fund is not relieved 
 
            of liability simply because one of the injuries may also 
 
            extend into the body as a whole.
 
            However, the claim against the Fund was denied because 
 
            claimant failed to show that the combined effect of both 
 
            industrial disabilities from the first and second injuries 
 
            was greater than  the sum of the industrial disabilities 
 
            from each injury.  In other words, the Fund's liability was 
 
            apportioned out under the recent supreme court decision in 
 
            Second Injury Fund v. Braden, Filed July 18, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANNY ALAN FIELDS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 883516
 
                                          :
 
            UNIVERSITY OF IOWA HOSPITALS  :      C O M M U T A T I O N
 
            AND CLINICS,                  :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding wherein Danny Alan Fields seeks to 
 
            commute the remaining balance of the permanent partial 
 
            disability award previously made in this case as a result of 
 
            an Arbitration Decision filed May 31, 1990, in which he was 
 
            found to have a 45 percent permanent partial disability.  
 
            Fields seeks a partial commutation of all but the last week 
 
            of the permanent partial disability compensation benefits 
 
            which become payable in the future.  The principal issue for 
 
            determination is whether the requested commutation would be 
 
            in Fields' best interest.
 
            
 
                 The case was heard at Des Moines, Iowa, on January 14, 
 
            1992.  The record in the proceeding consists of claimant's 
 
            exhibits 1 through 7.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Danny Alan Fields is a 40-year-old married man who 
 
            lives at Swisher, Iowa, and is employed at the University of 
 
            Iowa in Iowa City, Iowa.  His petition for a partial 
 
            commutation was filed in March 1991 at which time there were 
 
            approximately 154 weeks of unpaid future benefits.  At the 
 
            present time, there are 99 weeks of future unpaid benefits 
 
            computed as of March 10, 1992.  A partial commutation of all 
 
            but the last of those 99 weeks would result in the first 98 
 
            of the remaining 99 weeks being commuted.  The factor for 98 
 
            weeks is 89.2412.  At claimant's weekly benefit rate of 
 
            $267.74, the commuted value is $23,893.44.  This represents 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            a discount in the amount of $2,345.08 from the amount of 
 
            benefits which would be paid over 98 weeks.
 
            
 
                 Fields suffers from a work-related back injury.  He has 
 
            undergone two surgeries and has substantial residual 
 
            activity restrictions which prohibit him from performing his 
 
            prior work as a maintenance mechanic for the University of 
 
            Iowa Hospitals and Clinics.  He is now employed as a parking 
 
            lot attendant by the University of Iowa.  He earns 
 
            substantially less than what he had earned as a maintenance 
 
            person.  Fields has 19 years of seniority with the 
 
            University of Iowa and is reluctant to seek employment 
 
            elsewhere in view of the advantages of his seniority and 
 
            other fringe benefits.  His reluctance certainly seems 
 
            reasonable.
 
            
 
                 Claimant has accumulated a number of bills and 
 
            significant recurring monthly payments.  The bills are as 
 
            follows:
 
            
 
               Nature of Debt        Balance         Monthly Payment
 
            
 
               Mastercard          $ 3,518.00        $  59.00
 
               Sears                 1,454.00          100.00 (est.)
 
               Wards                 1,721.00          112.00
 
               GMAC                  6,835.00          177.37
 
               Kirkwood College        210.00                
 
               Kiracofe Oil Co.        236.00                
 
               Total               $13,973.00        $ 448.37
 
            
 
                 The award in this case provides Fields with weekly 
 
            benefits in the amount of $267.74.  This provides a monthly 
 
            benefit of $1,159.31.  Claimant pays one-third of the 
 
            monthly benefit to his attorney.  This leaves him a net 
 
            amount of $772.87 per month from his workers' compensation 
 
            recovery.  In the event the partial commutation is granted, 
 
            one-third of that amount will be payable as attorney fees, 
 
            namely $7,964.48.  This would leave Fields with a net lump 
 
            sum of $15,928.96.  After paying attorney fees and the debts 
 
            which he seeks to extinguish, Fields would be left with 
 
            approximately $1,956.00 if 98 weeks are commuted.
 
            
 
                 Fields lives in a home which he is purchasing on 
 
            contract with a contract interest rate of 10 percent per 
 
            annum.  The home is in need of substantial repairs in order 
 
            to maintain its status of habitability.  Fields hopes to 
 
            extinguish his debts with the funds from the commutation and 
 
            refinance the home in some method which will provide him 
 
            with funds to perform the needed repairs in the event that 
 
            the remaining amount of the commuted funds is insufficient 
 
            to pay for the repairs, a situation which seems quite 
 
            likely.  Fields hopes to obtain a lower interest rate in the 
 
            refinancing process.  The extinguishment of his other debts 
 
            will enhance his ability to refinance the home.  If Fields 
 
            were to pay his existing debts in their normal course, it 
 
            would require several years for him to extinguish them, a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            period of time which would extend far beyond the approximate 
 
            two years for which he will continue to receive workers' 
 
            compensation benefits if a commutation is not granted.  
 
            Under those circumstances, in two years, he would have less 
 
            income but higher monthly payments than what the situation 
 
            would be if a commutation is granted.
 
            
 
                 The plan which Fields has developed appears reasonable.  
 
            While it appears that he may have been somewhat guilty of 
 
            overspending and abuse of credit in the past, his current 
 
            plan to extinguish all his short-term debt so that his only 
 
            outstanding debt is his home contract--mortgage if 
 
            refinancing is accomplished--certainly seems much more 
 
            beneficial to him than the alternative of applying his 
 
            periodic workers' compensation benefits to his short-term 
 
            debts since the short-term debts extend beyond the period of 
 
            his weekly benefits.  If a commutation is not granted, his 
 
            outstanding debts may render him ineligible for refinancing 
 
            his home, depending upon what income to debt ratio standards 
 
            are applied by the lender.  If he is debt-free, he will be 
 
            in the best possible position for refinancing.
 
            
 
                 It is found that it is in the best interest of Danny 
 
            Alan Fields to grant the partial commutation as requested of 
 
            all but the last week of his permanent partial disability 
 
            award.
 
            
 
                 When making the computations contained in this 
 
            decision, it is assumed that the defendants have paid all 
 
            weekly benefits in a timely fashion as required by law and 
 
            that the amount of the claimant's debts are as represented 
 
            at the time of hearing.
 
            
 
                                conclusions of law
 
            
 
                 The legal standard for a commutation was initially 
 
            stated in Diamond v. Parsons Co., 356 Iowa 915, 129 N.W.2d 
 
            608 (1964).  The four factors to be determined are as 
 
            follows:
 
            
 
                 1.  The worker's age, education, mental and physical 
 
            condition, and actual life expectancy (as contrasted with 
 
            information provided by actuarial tables).
 
            
 
                 2.  The worker's family circumstances, living 
 
            arrangements, and responsibilities to dependents.
 
            
 
                 3.  The worker's financial condition, including all 
 
            sources of income, debts and living expenses.
 
            
 
                 4.  The reasonableness of the worker's plan for 
 
            investing the lump sum proceeds and the worker's ability to 
 
            manage invested funds or arrange for management by others 
 
            (for example, by a trustee or conservator).
 
            
 
                 Those same factors were more recently approved in the 
 
            case Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 (Iowa 
 
            1983).  The commissioner is not to act as an unyielding 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            conservator of the claimant's property.  The test is a 
 
            simple best interest balancing test which compares only the 
 
            status following commutation with the situation that would 
 
            exist if there were no commutation.
 
            
 
                 When considering all the four stated factors, there 
 
            appears to be nothing in regard to the age, education, 
 
            mental and physical condition, and actual life expectancy of 
 
            Fields which would weigh against granting the commutation 
 
            requested.  There likewise appears nothing concerning his 
 
            family circumstances, living arrangements and 
 
            responsibilities to dependents which would be adversely 
 
            affected by granting the commutation requested.  Fields' 
 
            plan to extinguish his short-term debt certainly appears 
 
            reasonable.  The small amount of remaining funds after the 
 
            debts were extinguished would be available to pay closing 
 
            costs which would be involved with refinancing the home or 
 
            to pay for some of the repairs to the claimant's home.  A 
 
            precise plan for each and every dollar is not required.  It 
 
            does appear to be in claimant's best interest to enable him 
 
            to extinguish his short-term debt, even if his plan to 
 
            refinance his home were not accomplished.  As previously 
 
            noted, if the debt is not extinguished, he will soon be 
 
            facing a situation of less income than he presently enjoys, 
 
            yet with the same or similar monthly expenditures for 
 
            short-term debt.  That alternative is certainly contrary to 
 
            the claimant's best interests.
 
            
 
                 Preserving the last week will preserve the claimant's 
 
            right to future medical benefits and review-reopening.
 
            
 
                 It is therefore concluded that the requested partial 
 
            commutation should be granted, namely commutation of 98 of 
 
            the 99 remaining weeks computed as of March 10, 1992.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 IT IS THEREFORE ORDERED that Danny Alan Fields is 
 
            granted a partial commutation of the first ninety-eight (98) 
 
            of the remaining ninety-nine (99) weeks of permanent partial 
 
            disability benefits which are currently payable to him as a 
 
            result of the arbitration decision entered May 31, 1990, and 
 
            the subsequent Stipulation and Agreement for Settlement 
 
            filed October 23, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Danny Alan 
 
            Fields the sum of twenty-three thousand eight hundred 
 
            ninety-three and 44/100 dollars ($23,893.44) on March 10, 
 
            1992, representing the first ninety-eight (98) weeks of the 
 
            remaining ninety-nine (99) weeks of benefits which are to 
 
            become payable to Danny Alan Fields in the future.  
 
            Defendants shall also immediately pay any past due, accrued 
 
            weekly benefits, if any such past due, accrued amounts are 
 
            unpaid.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Nicholas Russo
 
            Attorney at Law
 
            615 Iowa State Bank Building
 
            Iowa City, Iowa  52240
 
            
 
            Mr. James F. Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANNY ALAN FIELDS,
 
         
 
              Claimant,                             File No. 883516
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         UNIVERSITY OF IOWA HOSPITALS,              D E C I S I O N
 
         AND CLINICS,
 
         
 
              Employer,                                F I L E D
 
         
 
         STATE OF IOWA,                               MAY 31 1990
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein Danny Alan 
 
         Fields seeks compensation for healing period benefits, permanent 
 
         partial disability benefits, payment of medical expenses and a 
 
         limitation of credit for any disability insurance benefits paid 
 
         under a group policy based upon an alleged back injury of March 
 
         2, 1988.  The case was heard in Cedar Rapids, Iowa, on May 14, 
 
         1990.  The record in the proceeding consisted of the testimony of 
 
         the claimant, Danny Alan Fields, claimant's wife, Michael Stark, 
 
         Mike Whitehead, Virgil Fountain, and Juergen W. Knoop.  The 
 
         record also contains Joint Exhibits 1 through 20.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's March 2, 1988 injury arose out of and 
 
         in the course of his employment;
 
         
 
              2.  Whether claimant's alleged condition and disability is 
 
         causally connected to his March 2, 1988 injury;
 
         
 
              3.  The nature and extent of claimant's disability;
 
         
 
              4.  Claimant's entitlement to 85.27 benefits based on their 
 
         causal connection;
 
         
 
              5.  The extent, if any, of defendants' entitlement to credit 
 
         under Iowa Code section 85.38(2); and
 
         
 
              6.  Whether the credit under 85.38(2), if liability is 
 
         found, should be based on net amount of disability payments after 
 
         deduction of federal, state and social security taxes and 
 
         attorney fees on the gross amount.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy having heard the testimony and 
 
         considered all the evidence, finds that claimant is a 38-year-old 
 
         high school graduate who began working for defendant employer at 
 
         age 22 in October 1973.  Claimant started as an apprentice 
 
         working as a preventative maintenance worker in the heating, 
 
         ventilation and air conditioning department.  Claimant became a 
 
         journeyman in the early 1980's.  The maintenance work involved 25 
 
         percent heavy duty work and the rest light to medium work.  
 
         Claimant mainly acquired his education and experience in this 
 
         type work by on-the-job experience.  Claimant did take a course 
 
         involving his work at Kirkwood Community College.  Claimant's 
 
         work history prior to beginning work for defendant employer 
 
         involved mainly odd labor jobs, golf course mowing and playing in 
 
         a band.  Claimant played in a band up to and around October 1988.
 
         
 
              Claimant sought chiropractic treatment from a Dr. McDaniel 
 
         as early as the mid-1980's for general muscle aches and for 
 
         manipulative adjustment and occasional low back pain.  Claimant 
 
         indicated he went more than he would have because Blue Cross-Blue 
 
         Shield was paying the bills.  Claimant sought medical treatment 
 
         from a Dr. Barnes prior to March 2, 1988 due to anxiety and panic 
 
         attacks.
 
         
 
              Claimant was admonished on one or more occasions in 1985 and 
 
         1986 for filing incident reports.  Defendants acknowledge this 
 
         but contend these were for equipment problems and did not involve 
 
         injury reports.  Claimant did not distinguish between the two but 
 
         left the impression that his supervisor was referring to and 
 
         including injury reporting.  The only time an incident or 
 
         accident report is in evidence is reflected in Joint Exhibit 19, 
 
         pages 28 and 42-53.  These reports contain notations of injuries 
 
         claimant suffered at work on the respective occasions.  The 
 
         exhibit is indicated as an "Unusual Incident, Medicine Error & 
 
         Accident Report.  There is no other type of report in evidence 
 
         which indicates an equipment problem or accident would be 
 
         reported on a different separate form as inferred from Mr. 
 
         Juergen Knoop's testimony.  The exhibit forms referred to above 
 
         are obviously multipurpose, suitable for personal injury 
 
         incidences, accidents or equipment problems as evidenced by the 
 
         categories "Other," "Lost, Damaged or Stolen Property," and under 
 
         the category "IV/Errors", "Equip. Malfunction."  These latter 
 
         items obviously had nothing to do with claimant's injury, but 
 
         were on the same reporting form.  Defendants' witness, Mr. Knoop, 
 
         is obviously misleading the undersigned on this point.  Claimant 
 
         never acknowledged that he was filing superfluous or unnecessary 
 
         reports.  In fact it is evident he thought he was following the 
 
         company rules.
 
         
 
              Claimant had not seen a neurologist or orthopedic surgeon 
 
         for any medical care prior to March 2, 1988.
 
         
 
              Claimant contends he was injured at work on March 2, 1988 
 
         while using two pipe wrenches to take apart a steam trap and 
 
         claimant slipped and sprained his back when the pipe union 
 
         suddenly came loose and gave way.  Claimant knew he was to report 
 
         injuries within two days of the incident but because of the prior 
 
         warnings by his supervisor, Mr. Knoop, as to filing several 
 
         unnecessary reports, claimant did not report this incident until 
 
         approximately 88 days later, in other words, March 31, 1988. 
 
         Claimant also did not think his injury was that serious.  From 
 
         past experiences with his work, it wasn't unusual for claimant to 
 
         have bruises, slight and insignificant pain, and he thought the 
 
         pain in his low back would go away.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants contend claimant waited 88 days to file a report, 
 
         which delay indicated he was not really injured, that he is a 
 
         fake and falsified the real situation.  Although it is advisable 
 
         to file a report as soon as possible, the law provides one has 90 
 
         days from the date of the occurrence of the injury to give the 
 
         employee notice.  Iowa Code section 85.23 (1987).  As in all 
 
         notice statutes, there is no inference of dishonesty or fraud if 
 
         one waits near the end of the period to exercise one's statutory 
 
         rights.  Claimant had reason to be cautious about filing the 
 
         report.  Claimant did acknowledge that in all the prior cases of 
 
         which he reported an injury, he filed a report within a day up to 
 
         a few days.  Claimant continued to work but did seek medical 
 
         treatment from a Dr. McDaniel, a chiropractor, who advised 
 
         claimant to continue working.
 
         
 
              Claimant was not getting better as he thought he should, so 
 
         in April 1988 he became concerned that he may have a more serious 
 
         injury than he had thought and was concerned that he hadn't 
 
         reported the incident in the 48 hour period, as required under 
 
         company rules.  Claimant had reported to his co-employee what had 
 
         happened but had not given defendants any other notice of injury. 
 
         Claimant thought he was going to get fired if he filed a report 
 
         after the two day requirement.  Claimant then sought legal 
 
         counsel.  He also sought help from his psychologist, Dr. Gersch, 
 
         who referred him to Richard F. Neiman, M.D.  Dr. Neiman told 
 
         claimant not to work.
 
         
 
              Claimant returned to work fifteen days in the summer of 1988 
 
         but was unable to work any longer due to his injury.  Claimant 
 
         was referred then to M.C. Mysnyk, M.D., an orthopedic surgeon in 
 
         the summer of 1988.
 
         
 
              Claimant testified he played in the band in addition to his 
 
         regular employment.  Two fellow band members, who also were 
 
         employees of defendant employer, testified that they noticed a 
 
         problem with claimant's physical condition in March 1988, at 
 
         which time claimant related to them that he hurt his back at 
 
         work. Claimant had asked them to carry his equipment into the 
 
         house in which the three were practicing and rehearsing for an 
 
         upcoming engagement.  Both Stark and Whitehead indicated that 
 
         this request by claimant was unusual since claimant usually 
 
         carried his own equipment to wherever they were going to practice 
 
         and/or play. This particular practice was the weekend of March 5 
 
         or 6, 1988, as claimant and these two witnesses were rehearsing 
 
         for a future engagement.  Whitehead recalled a conversation with 
 
         claimant prior to March 1988 in which claimant related a 
 
         conversation he had with his supervisor regarding claimant's 
 
         frequency in reporting incidences.  Claimant indicated at that 
 
         time that he was required to calm down the number of reports.
 
         
 
              Both Stark and Whitehead were long-time friends of claimant 
 
         and Whitehead actually worked with claimant in the same 
 
         department for fifteen years.  The state's attorney fiercely 
 
         attacked the credibility of these two witnesses because he saw 
 
         and possibly overheard them talking to claimant's attorney during 
 
         a very short recess prior to these two witnesses testifying.  
 
         These witnesses were earlier excluded from the courtroom 
 
         proceedings by claimant's motion to exclude witnesses who were 
 
         going to testify until they are called to testify.  Although it 
 
         appeared claimant's attorney was the one who subpoenaed these 
 
         witnesses, it was obvious he had little opportunity to visit with 
 
         them during a brief break as the state's attorney indicated he 
 
         interrupted their conversation.  The two witnesses made it very 
 
         clear that whatever they discussed, they were telling the truth 
 
         then and now when being called to testify under oath.  The 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         undersigned finds these two witnesses are credible.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Virgil Fountain recalled that claimant told him in March or 
 
         April 1988 that claimant hurt his back at defendant employer's 
 
         place of business in the pediatric cardiology department.  Mr. 
 
         Fountain has known claimant since claimant began working for 
 
         defendant employer and is actually claimant's lead person 
 
         assigning the various jobs to claimant.  Fountain recalled the 
 
         approximate time claimant had his injury because this witness had 
 
         a back injury around March or April 1988 and went through surgery 
 
         himself in May 1988.  Fountain acknowledged claimant was 
 
         reprimanded prior to March 1988 for abusing or misusing sick 
 
         leave.
 
         
 
              Claimant's wife supported claimant's reason for holding off 
 
         reporting his March 2, 1988 injury.  She said claimant told her 
 
         his boss had told him that claimant was filing too many 
 
         unnecessary reports and claimant was to cool it.  She indicated 
 
         claimant had been put on a six month probation earlier because of 
 
         taking too much sick leave.  Mrs. Fields described how claimant's 
 
         condition after his March 2, 1988 injury became progressively 
 
         worse rather than getting better, all of which ultimately 
 
         resulted in claimant's surgery.
 
         
 
              Claimant and his wife bought a house in 1986 and began 
 
         remodeling it in the fall of 1987, when they ran out of money. 
 
         Claimant has not been able to work on the house since the March 
 
         2, 1988 accident.  Mrs. Fields related claimant's feelings of 
 
         being intimidated by Mr. Knoop, who was described as being very 
 
         demanding.
 
         
 
              Juergen Knoop, claimant's supervisor, said claimant always 
 
         filed reports within the 24 hours except for his March 2, 1988 
 
         incident.  Knoop acknowledged he discussed with claimant his 
 
         excessive filing of incident reports, but not regarding accident 
 
         reports.  Although Knoop tried to distinguish an incident report 
 
         which involves equipment or machine breakdown versus an accident 
 
         report which involves a personal injury, he was not able to 
 
         explain why the only reports in evidence refer to "Unusual 
 
         Incident, Medication Error, and Accident Report."  (Jt. Ex. 19, 
 
         pp. 28, 42-52)
 
         
 
              Mr. Knoop first indicated hesitantly that he observed 
 
         claimant during March and April 1988 on a daily basis and never 
 
         saw any indication that claimant injured his back.  Later on in 
 
         his testimony, Mr. Knoop said he didn't follow claimant around or 
 
         didn't observe his work.  It is obvious this witness, at most, 
 
         only saw claimant coming to and leaving work and did not know or 
 
         observe how claimant worked during this March to April 1988 
 
         period.
 
         
 
              Dr. Mysnyk performed a right L4-5 diskectomy with partial L4 
 
         and L5 right laminectomies on September 9, 1988 (Jt. Ex. 6, p. 
 
         6). Claimant went through a work hardening program and slowly 
 
         progressed and was getting better.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              In December 1988, claimant and his son cut down a tree. 
 
         Claimant said his son did most of the work.  Claimant 
 
         acknowledged he had some pain in his back after this tree 
 
         incident but emphasized he wasn't injured by this incident.
 
         
 
              Claimant returned to the doctor in December 1988 and after a 
 
         enhanced MRI, claimant incurred a second surgery on February 1, 
 
         1989 (Jt. Ex. 6, p. 17) for a rupture of his same disc.  This 
 
         second surgery was described as "a right-sided L4-L5 laminotomy 
 
         and excision of recurrent disk."
 
         
 
              Claimant then went through the Kirkwood Community assessment 
 
         program at the entry level skill to determine his work goals and 
 
         abilities.  The Iowa Department of Vocational Rehabilitation also 
 
         helped claimant.
 
         
 
              Dr. Mysnyk released claimant to work on October 10, 1989 and 
 
         prescribed certain restrictions.
 
         
 
              Claimant related certain household tasks and activities he 
 
         could do prior to the March 2, 1988 injury that he couldn't do 
 
         now.  Claimant said he attempted to seek re-employment at 
 
         defendant employer but there were no positions that he was able 
 
         to obtain.  Claimant was unable to physically perform the 
 
         particular job he had on March 2, 1988.  Claimant was then 
 
         eventually hired as a parking lot cashier attendant at a salary 
 
         of $12,000. Claimant was making $21,000 at the time of his March 
 
         2, 1988 injury.
 
         
 
              Mark C  Mysnyk, M.D., an orthopedic surgeon, testified by 
 
         way of deposition on March 10, 1990 that he had first treated 
 
         claimant on August 25, 1988 and advised claimant to remain off 
 
         work pending an outcome of certain procedure.  By the time of 
 
         claimant's examination, claimant had already had a CT scan and 
 
         L4-5 disc problem diagnosis and a steroid injection on May 10, 
 
         1988.  After an extensive examination and reviewing claimant's 
 
         prior medical and the results of claimant's CT scan and MRI, it 
 
         was apparent claimant had an L4-5 herniated disc.  The doctor 
 
         said he then performed an L4-5 diskectomy on September 9, 1988.  
 
         The doctor discovered both a free fragment plus a bulging disc.  
 
         Dr. Mysnyk opined that claimant's March 2, 1988 injury caused 
 
         claimant's herniated disc (Jt. Ex. 14, pp. 16-17).  The doctor 
 
         noted upon following claimant's progress that claimant was making 
 
         slow progress with his rehabilitation and had developed some pain 
 
         in his low back (Jt. Ex. 14, p. 19)
 
         
 
              Dr. Mysnyk referred to his December 6, 1988 notes which 
 
         indicated claimant had developed some pain in his low back that 
 
         was different than the pain he had before his first surgery and 
 
         that it felt like a muscular pain (Jt. Ex. 14, p. 19).  The 
 
         doctor indicated this was not a new injury but a common 
 
         occurrence for someone who had undertook an activity of some 
 
         rigor before they have completed a work hardening program.  
 
         Claimant had another CT and MRI which confirmed claimant had a 
 
         recurrent herniated nucleus pulposus at the L4, L5 level (Jt. Ex. 
 
         14, p. 23).  Dr. Mysnyk opined that claimant's recurring disc 
 
         herniation was due to the original injury.  He said he doesn't 
 
         know anyone who can explain why that happens shortly after 
 
         surgery but it happens in 5 to 10 percent of the cases. 
 
         Claimant's second surgery for a recurrent herniated disc was 
 
         performed on February 1, 1989.  Using the third edition of the 
 
         AMA Guides, Dr. Mysnyk opined on October 10, 1989 that claimant 
 
         had a 12 percent impairment to his body as a whole (Jt. Ex. 13, 
 
         p. 1) and had reached maximum recovery and released claimant to 
 
         return to work with the previous job restrictions of no lifting 
 
         more than 20 pounds repetitively or 50 pounds at one time, and no 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         bending or crawling, occasional squatting, and no climbing (Jt. 
 
         Ex. 12; Dep. Ex. 2)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Mysnyk further concluded claimant probably will always 
 
         have problems if he tries to.do any heavy lifting such as 50 
 
         pounds and that claimant would not be able to return to his 
 
         former job (Jt. Ex. 14, pp. 32-33).  The doctor was 
 
         cross-examined as to claimant's tree chopping incident.  The 
 
         doctor did not know the extent of claimant's participation, how 
 
         strenuous it was, or the size of the tree, but the doctor was 
 
         only told that claimant chopped down a tree.  During the hearing 
 
         itself, there was very little description as to the tree size and 
 
         how the tree was cut and disposed of.  Defendants did not develop 
 
         this on cross-examination and yet contend this is a big deal and 
 
         caused claimant's current back problems and second  surgery.  
 
         Defendants further contend claimant should have called in 
 
         claimant's son, who helped claimant cut down the tree, to support 
 
         claimant's testimony.  It is true claimant has the burden of 
 
         proof.  Unless defendants presume claimant is lying and not 
 
         credible and presumes the deputy will think likewise, defendants 
 
         had equal opportunity to investigates the facts and call other 
 
         witnesses if they thought claimant was lying.  Defendants are 
 
         apparently satisfied that the less detail they develop on this 
 
         issue, the better the odds will be that claimant is not truthful.
 
         
 
              It is very obvious from the defendants' position in this 
 
         case and defendants' argument after the hearing, that they do not 
 
         believe claimant and their disparaging remarks at the hearing 
 
         support this.  The undersigned believes claimant is credible and 
 
         accepts the doctor's opinion that claimant's condition and 
 
         surgeries are causally connected to his March 2, 1988 injury. 
 
         Claimant's attorney rightfully took exception to defendants' 
 
         attorney's harsh and piercing attack on claimant's credibility. 
 
         Such remarks are not evidence and do not make a good defense.  It 
 
         is clear defendants do not believe claimant as they denied 
 
         liability in this case.  That gives no excuse to attack the 
 
         claimant with the barrage of negative words especially with the 
 
         record we have.
 
         
 
              Although Dr. Mysnyk knew claimant was on medication 
 
         prescribed for his anxiety problems, he emphasized that 
 
         claimant's stress could not cause claimant's recurrent disc 
 
         problem but could aggravate the symptoms of a recurrent disc and 
 
         increase the pain. The undersigned finds any stress problems 
 
         claimant has were not caused by claimant's March 2, 1988 injury 
 
         and, also, finds that the stress did not cause or increase any 
 
         impairment claimant may have resulting from his March 2, 1988 
 
         injury.  There is considerable evidence of claimant's treatment 
 
         for control of his panic disorder.  Although this can contribute 
 
         to claimant's overall problems, he was on medication.  There is 
 
         no medical evidence that indicates claimant's anxiety problems 
 
         have added to his impairment (Jt. Ex. 3).
 
         
 
              Prior to Dr. Mysnyk's treatment, claimant was diagnosed by 
 
         Dr. Neiman, a neurologist, pursuant to a CT scan being performed, 
 
         that claimant has a large bulging disc at L4-5 level (Jt. Ex. 2, 
 
         p. 17; Jt. Ex. 4, p. 5).  X-rays taken later at Mercy Hospital, 
 
         Iowa City support this diagnosis (Jt. Ex. 4, p. 7).  The 
 
         undersigned finds claimant incurred a work-related low back 
 
         injury on March 2, 1988 while attempting to take apart with 
 
         wrenches a steam pipe connection which broke loose causing 
 
         claimant to slip. Claimant's March 2, 1988 injury arose out of 
 
         and in the course of his employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The fact that claimant waited 88 days to report his injury 
 
         was coincidental with the nature of his injury and the working 
 
         conditions and atmosphere that existed with his supervisor and 
 
         defendant employer at the time.  The state's contention that the 
 
         fact claimant waited until two days before the statutory 90 days 
 
         notice statute ran is unacceptable.  The state most likely would 
 
         have used the same argument if claimant had reported the injury 
 
         in one-half that time.
 
         
 
              Claimant's injuries and his two surgeries, September 9, 1988 
 
         and February 1, 1989, are causally connected to his work injury 
 
         on March 2, 1988.  Defendants denied liability so the 85.27 
 
         medical benefit issue is moot in light of the above finding of 
 
         causal connection.
 
         
 
              Dr. Mysnyk, the orthopedic surgeon, opined claimant incurred 
 
         a 12 percent permanent partial impairment to his body as a whole 
 
         as a result of claimant's March 2, 1988 injury.  This doctor 
 
         performed claimant's two surgeries.  Claimant was off for a 
 
         considerable period of time, namely, April 28, 1988 up to October 
 
         10, 1989 minus fifteen days, due to his March 2, 1988 injury.  
 
         Dr. Mysnyk said claimant reached maximum healing period on 
 
         October 10, 1985.  The undersigned finds claimant has a 12 
 
         percent permanent partial impairment to his body as a whole as a 
 
         result of his March 2, 1988 injury and this injury caused 
 
         claimant to have the two surgeries referred to above and incur 
 
         the healing period set out above.
 
         
 
              Claimant is not able to return to his former job with 
 
         defendant employer because of his March 2, 1988 injury and the 
 
         resulting restrictions imposed upon him by his doctor.  
 
         Defendants have found claimant a job that does not violate his 
 
         work restrictions.  This job resulted in claimant now earning 
 
         approximately $9,000 less wages or 42.9 percent of the wages he 
 
         was earning at the time of his injury.  Claimant has gone from an 
 
         environmental systems mechanic to a parking lot attendant 
 
         cashier. Defendants argue why claimant has not sought a better 
 
         job than his current one.  Claimant did seek a better job with 
 
         defendant employer but obviously the work restrictions have not 
 
         enabled him to work at his former job or jobs that violated his 
 
         restrictions. The evidence appears claimant inquired about his 
 
         former job but the employer obviously did not allow him to return 
 
         to that job and obviously felt claimant's restrictions prevented 
 
         him from doing that job.  Defendant employer is a large employer.  
 
         Claimant was injured while being employed by defendant employer.  
 
         The state's attorney's argument criticizing claimant for not 
 
         looking for a better paying job is without merit under the 
 
         circumstances of this case.  There would be no better place to 
 
         start as far as defendants' criticism than for the defendant 
 
         employer to offer claimant a better job which doesn't violate his 
 
         restrictions, or pay him more income for claimant's current job 
 
         or the allegedly best job that they have currently found for him.  
 
         Claimant's injury has put him out of the job market and an area 
 
         of the industry in which he worked for many years.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's earning capacity has been substantially 
 
         decreased. Claimant appears to be smart enough to pursue some 
 
         education and to better himself.  He apparently has no choice but 
 
         to pursue work involving sedentary type desk jobs due to his 
 
         March 2, 1988 injury.  Claimant must support himself and his 
 
         family and it is easier said than done for him to return to 
 
         schooling full-time and work 40 hours a week.  It appears 
 
         claimant is going to attempt to pick up a few hours of education 
 
         a year, but this will take considerable time.  What job claimant 
 
         will qualify for with additional education is speculative and it 
 
         will obviously not be resolved until a number of years.
 
         
 
              The state of Iowa has denied liability.  It could provide 
 
         claimant with access to an education more reasonably than others 
 
         since it controls the well-known educational institutions and is 
 
         responsible for claimant's injury.  There has been no indication 
 
         this will happen or whether claimant meets the educational 
 
         entrance requirement.  Claimant seems to indicate his schooling 
 
         will come gradually by attending Kirkwood Community College, 
 
         which is closer to where he lives.  The undersigned will not 
 
         speculate. It is obvious claimant's present job is a substantial 
 
         step downward in comparison to his ability and long work history 
 
         before this injury.  Although claimant has seen a chiropractor 
 
         and has some back pain history, he has been performing his 
 
         strenuous job which involves some heavy duty work for several 
 
         years.
 
         
 
              Taking into consideration all the criteria for determining 
 
         industrial disability, including but not limited to claimant's 
 
         age, education, length of healing period, work experience, loss 
 
         of income, location of the injury, severity of the injury, 
 
         motivation and functional impairment, the undersigned finds 
 
         claimant has a 45 percent industrial disability and disability 
 
         benefits are.to commence beginning October 10, 1989 at the weekly 
 
         rate of $267.74.
 
         
 
              The parties agreed that claimant was paid $17,153.88 group 
 
         disability benefits by the Principal Group pursuant to defendant 
 
         employer's disability insurance policy obtained for claimant's 
 
         benefit.  This amount covered the period between October 10, 1988 
 
         and October 10, 1989.  Since these payments are taxable income to 
 
         the claimant, any credit given to defendants against the workers' 
 
         compensation benefits are to be the net amount after the 
 
         allowance for the payment of the federal, state and FICA tax 
 
         consequences to the claimant by reason of said payments.  This 
 
         agency has supported this position in a prior decision.  See 
 
         Gritton v. Department of Transportation and State of Iowa, File 
 
         No. 751165, filed December 20, 1989.  Claimant contends that the 
 
         gross amount of long-term disability payments should be further 
 
         reduced by the attorney fee agreement he has with the claimant, 
 
         which in this case is based on one-third of those amounts to be 
 
         covered.  It is only reasonable that the state should not benefit 
 
         by the way of a credit at the expense of claimant paying for the 
 
         services of his own attorney, thereby resulting in the state 
 
         benefiting from the claimant's attorney's efforts.  Defendants 
 
         totally denied liability and there would be no credit issue 
 
         involved had the claimant's attorney not started this litigation.  
 
         The undersigned therefore finds that the defendants are to be 
 
         given credit for the $17,153.88 long-term disability benefits 
 
         after all the federal, state and FICA taxes owed by claimant on 
 
         said benefits and further reduced by the sum of one-third of 
 
         $17,153.88 attorney fees.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant's attorney has applied for approval of attorney 
 
         fees.  This agency does not approve attorney fee applications 
 
         unless there is a dispute involving same.
 
         
 
              There is an additional amount of $6,809.25 paid by the 
 
         Principal Insurance Group as disability benefits for a period 
 
         after October 10, 1989.  It appears that the Principal Group is 
 
         not requesting reimbursement of that amount based on the 
 
         proposition that this was not paid during a healing period and, 
 
         therefore, is an amount in reference to permanent partial 
 
         disability benefits for which they are not requesting 
 
         reimbursement or subrogation rights.  Claimants contend that none 
 
         of this amount should be offset as a credit in any respect. 
 
         Defendants contend that they should also get credit for this 
 
         amount.  As cited above, Iowa Code section 85.38(2) allows the 
 
         employer a credit "to or against any compensation payments." 
 
         (Emphasis added)  Section 85.38(2) includes all compensation 
 
         payments without distinguishing between temporary total 
 
         disability benefits, healing period benefits, permanent partial 
 
         disability benefits or permanent total disability benefits.  
 
         Therefore, it can only be concluded that defendants are entitled 
 
         to a credit against the compensation payments made to claimant 
 
         for any long-term disability benefits made to claimant.  Simply 
 
         put, to do otherwise would be to compensate claimant twice for 
 
         the same injury.  This position has been previously ruled upon by 
 
         this agency in the Gritton case previously cited above.  It is 
 
         therefore found that the defendants shall be given credit for the 
 
         net amount of $6,809.25 after the same has been reduced by the 
 
         federal, state and FICA tax consequences of claimant and further 
 
         reduced by the one-third attorney fees.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on March 2, 1988 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 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 March 2, 1988 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d  167 (1960).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73  N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              In Parr v. Nash Finch Co., (appeal decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W. 2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it  would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
              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.
 
         
 
              Iowa Code section 85.38(2) provides:
 
         
 
              In the event the disabled employee shall receive any 
 
              benefits, including medical, surgical or hospital benefits, 
 
              under any group plan covering nonoccupational disabilities 
 
              contributed to wholly or partially by the employer, which 
 
              benefits should not have been paid or payable if any rights 
 
              of recovery existed under this chapter, chapter 85A or 
 
              chapter 85B, then such amounts so paid to said employee from 
 
              any such group plan shall be credited to or against any 
 
              compensation payments, including medical, surgical or 
 
              hospital, made or to be made under this chapter, chapter 85A 
 
              or chapter 85B.  Such amounts so credited shall be deducted 
 
              from the payments made under these chapters.  Any 
 
              nonoccupational plan shall be reimbursed in the amount so 
 
              deducted.  This section shall not apply to payments made 
 
              under any group plan which would have been payable even 
 
              though there was an injury under this chapter or an 
 
              occupational disease under chapter 85A or an occupational 
 
              hearing loss under chapter 85B.  Any employer receiving such 
 
              credit shall keep such employee safe and harmless from any 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              and all claims or liabilities that may be made against them 
 
              by reason of having received such payments only to the 
 
              extent of such credit.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's March 2, 1988 back injury which arose out of and 
 
         in the course of his employment caused claimant to to incur a 45 
 
         percent industrial disability, entitling him to 200 weeks of 
 
         permanent partial disability benefits at the rate of $267.74.
 
         
 
              Claimant is further entitled to healing period benefits and 
 
         medical benefits as hereafter ordered.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay healing period benefits for the 
 
         period beginning April 28, 1988 up to October 10, 1989 minus the 
 
         fifteen (15) days claimant worked in July and August 1988, which 
 
         totals seventy-four point five seven one (74.571) weeks at the 
 
         weekly rate of two hundred sixty-seven and 74/100 dollars 
 
         ($267.74).
 
         
 
              That defendants pay unto claimant two hundred twenty-five 
 
         (225) weeks of permanent partial disability benefits at the 
 
         weekly rate of two hundred sixty-seven and 74/100 dollars 
 
         ($267.74) commencing October 10, 1989.
 
         
 
              That defendants shall pay all of claimant's medical bills.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants have paid through a group 
 
         disability policy twenty-three thousand nine hundred sixty-three 
 
         and 13/100 dollars ($23,963.13) disability benefits.  The amount 
 
         of credit as to these payments for which defendants shall be 
 
         given credit is that amount minus any federal, state and FICA 
 
         taxes for which claimant would be responsible out of said amount, 
 
         as provided by law, and further reduced by the sum of one-third 
 
         of the twenty-three thousand nine hundred sixty-three and 13/100 
 
         dollars ($23,963.13), which represents attorney fees.
 
         
 
              That defendants are to be given further credit for the sum 
 
         of sixteen thousand nine hundred forty-four and 25/100 dollars 
 
         ($16,944.25) against the medical bills incurred by claimant.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr J. Nicholas Russo
 
         Attorney at Law
 
         615 Iowa State Bank Bldg
 
         Iowa City, IA  52240,
 
         
 
         Mr Robert Wilson
 
         Mr Dean A. Lerner
 
         Assistant Attorney General
 
         Tort Claims
 
         Hoover Building
 
         Des Moines, IA  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               3303.20
 
                                               Filed March 10, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANNY ALAN FIELDS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 883516
 
                                          :
 
            UNIVERSITY OF IOWA HOSPITALS  :      C O M M U T A T I O N
 
            AND CLINICS,                  :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            3303.20
 
            Claimant was granted a partial commutation in order to 
 
            become debt free other than for his home mortgage.  It was 
 
            found to be in the claimant's best interests to extinguish 
 
            those debts rather than have monthly payments which would 
 
            remain after the period of time when his workers' 
 
            compensation permanent partial disability benefits would 
 
            cease.  It would further enhance the claimant's ability to 
 
            refinance his home at a lower interest rate if he were debt 
 
            free.
 
            
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1701; 5-1100; 5-1108.50
 
                                            5-1802; 1803
 
                                            Filed May 31, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DANNY ALAN FIELDS,
 
         
 
              Claimant,
 
         
 
         VS.                                            File No. 883516
 
         
 
         UNIVERSITY OF IOWA HOSPITALS,               A R B I T R A T I O N
 
         AND CLINICS,
 
                                                        D E C I S I O N
 
              Employer,
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1100
 
         
 
              Found claimant's injury arose out of and in the course of 
 
         claimant's employment.
 
         
 
         5-1108.50
 
         
 
              Found claimant's back condition and two ruptured disc 
 
         surgeries at L4-L5 and 12% permanent partial impairment to his 
 
         body as a whole are causally connected to his work injury.
 
         
 
         1803; 5-1802
 
         
 
              Claimant awarded 45% industrial disability and healing 
 
         period benefits.
 
         
 
         1701
 
         
 
              Credit given to defendants for group disability insurance 
 
         benefits under 85.38(2) is the net after deducting federal, state 
 
         and FICA tax consequence to claimant and after deducting 
 
         one-third attorney fees on gross amount.