Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANA VANDERPOOL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 885396
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on October 29, 1991, at 
 
            10:00 a.m., in Des Moines, Iowa.  This is a proceeding in 
 
            arbitration wherein claimant seeks compensation for 
 
            permanent partial disability benefits as a result of an 
 
            alleged injury occurring on May 7, 1988.  The record in the 
 
            proceedings consists of the testimony of claimant, Harold 
 
            Brammer, and Diane Pine; and claimant's exhibits 10-14; and 
 
            defendants' exhibit A through I.
 
            
 
                 Defendants filed a motion to exclude claimant's 
 
            witnesses and exhibits based on claimant's failure to comply 
 
            with the hearing assignment order.  There was no dispute 
 
            that claimant did not comply with the hearing assignment 
 
            order.  Claimant's contentions were frivolous, one of which 
 
            was basically that claimant's attorney did not put the 
 
            required witness and exhibit lists in the mail timely so 
 
            that they would be picked up by the postman, because the 
 
            postman did not pick up mail on October 14, 1991, which was 
 
            Columbus Day.  It would have been useless, as far as the 
 
            claimant's attorney was concerned, to timely deposit the 
 
            lists in the mailbox when it wouldn't be picked up.  If 
 
            deposited in the mailbox, it is really not material, 
 
            assuming that it is true, that the post office would not 
 
            have made a pickup if it was deposited in a post office box.  
 
            It appears that the post office box that claimant's attorney 
 
            was referring to is a basket on a secretary's desk from 
 
            which a mailman picks up the firm's mail when he makes a 
 
            delivery to the firm of any mail that a postman might have 
 
            to deliver to the firm.  Of course, the basket would not be 
 
            considered a post office receptacle anyway.
 
            
 
                 The hearing assignment order provided that each party 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            requested one and one-half hours to present its case, 
 
            including any anticipated cross-examination.  The parties 
 
            were repeatedly reminded of the time allotted and the time 
 
            the parties were using or wasting in various arguments.  Due 
 
            to the claimant's actions of untimely filing of witness and 
 
            exhibit lists, and the extended arguments regarding the 
 
            motion of defendants, the submission of the oral evidence 
 
            itself did not begin until 1:00 p.m. or after, at which time 
 
            the parties again were warned that they had almost used all 
 
            their time and they should judge themselves accordingly in 
 
            pursuing the balance of their testimony.  Again, after re
 
            peated warnings and extensions of time and additional 
 
            warnings from the court and court reporter of commitments, 
 
            the undersigned cut off any further testimony or 
 
            presentation of evidence at approximately 5:30 p.m., the 
 
            parties having taken approximately six and one-half hours.  
 
            Claimant was mainly violating the time requirements and, 
 
            particularly because of the time claimant took to try to 
 
            defend claimant's attorney's violation of the hearing 
 
            assignment order.  Defendants' motion was sustained.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged injury on May 7, 1988, 
 
            arose out of and in the course of claimant's employment;
 
            
 
                 2.  Whether there is any causal connection as to any 
 
            temporary or permanent disability as a result of claimant's 
 
            alleged May 7, 1988 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits, if any; and,
 
            
 
                 4.  Claimant's entitlement, if any, to 85.27 medical 
 
            benefits, the particular issue being reasonableness and 
 
            necessity, causal connection and authorization;
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 50 year old high school graduate who has 
 
            no other formal education.  Claimant had limited employment 
 
            prior to her beginning work with defendant employer as she 
 
            was taking care of her children at home.  Claimant first 
 
            worked four months for defendant employer in 1974, then 
 
            three months in 1977, and again in January 1982, whereby she 
 
            worked until November 24, 1988, at which time she quit her 
 
            employment in order to go to Utah with her husband.
 
            
 
                 Claimant said she worked a few months in Salt Lake 
 
            City, Utah, but could not do the work.  She contends she 
 
            left that employment due to physical and mental problems, 
 
            namely, stomach and back problems and headaches.
 
            
 
                 Claimant and her husband returned from Salt Lake City 
 
            four months later in 1989.  Claimant reapplied to work for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            defendant employer and was turned down.  She said she 
 
            applied two more times and was turned down.  She does not 
 
            know why.
 
            
 
                 Claimant explained her duties when she worked for 
 
            defendant employer.  These duties involved daily lifting and 
 
            most of the patients are handicapped.
 
            
 
                 Claimant is now working since January 4, 1991, in a 
 
            laundromat as an mangle ironer at $4.25 per hour.
 
            
 
                 Claimant described her injury on May 7, 1988, as a 
 
            result of a fellow worker striking her in the shoulder so 
 
            hard that claimant claims she went across the room and 
 
            caught herself before falling but after she hit the table or 
 
            the back of a chair.  She said she had a two inch 
 
            circumference bruise.  Claimant went to work the next day 
 
            and reported the injury and then went to the doctor.  Except 
 
            for working two hours on May 8 and working May 16, 17 and 
 
            18, claimant did not work again until September 1, 1988.  
 
            Claimant said the doctor released her to go to work on that 
 
            date.
 
            
 
                 Claimant said she currently has a problem lifting or 
 
            holding her arm out.  She said the pain starts in the middle 
 
            of her arm and goes into the shoulder and neck and goes down 
 
            her back.  Claimant said she has headaches and stomach 
 
            problems.  She said these are partially caused by her May 7, 
 
            1988 injury and that they became more severe after her May 
 
            7, 1988 injury.
 
            
 
                 Claimant said her current job at the laundromat 
 
            requires no lifting.  She said that when she worked for 
 
            defendant employer, she could do her job and lift the 
 
            patients.  She acknowledged she wants to work again for 
 
            defendant employer and thought she could do the work but not 
 
            as she did prior to May 7, 1988 (Defendants' Exhibit A).
 
            
 
                 On cross-examination, claimant was referred to 
 
            defendants' exhibit A, page 6, in which the claimant said 
 
            she was quitting work because her husband was being 
 
            transferred from Omaha to Salt Lake City with the Union 
 
            Pacific Railroad.
 
            
 
                 Claimant's attention was called to her deposition taken 
 
            August 7, 1991 (Def. Ex. G) in which she testified no prior 
 
            problems before May 7, 1988, which is the same testimony 
 
            that she gave at this hearing.  Defendants' attorney pointed 
 
            out several incidents in defendants' exhibit A in which 
 
            claimant reported incidents in April 1988, March 1988, 
 
            February 1988, September 1987, November 1986, August 1986, 
 
            June 1986, January 1986, September 1985, etc.
 
            
 
                 Contrary to what claimant said earlier in her 
 
            testimony, she now says she doesn't have stomach problems.
 
            
 
                 Claimant denied she was painting her house on a 
 
            stepladder in July 1988 and she does not remember getting 
 
            her house ready to sell.  Claimant admitted that had she not 
 
            moved to Salt Lake City, she probably would have continued 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to work for defendant employer.
 
            
 
                 Diane Pine testified she currently is in school at Iowa 
 
            Wesleyan, but did work with claimant while at defendant 
 
            employer's.  She was present when the incident claimant 
 
            described resulted in claimant's alleged injury.  Ms. Pine 
 
            was within two feet of the claimant when another staff 
 
            member, Lou Ann Gordon, smacked claimant's shoulder with an 
 
            open hand.  Ms. Pine said claimant shuffled backwards about 
 
            one and one-half feet but did not fall nor did not appear to 
 
            be injured.  Claimant did not hit anything but bumped into 
 
            another staff member.  Ms. Pine said that Lou Ann Gordon did 
 
            the smack as a joke.  Everyone seemed to be in shock when 
 
            this event occurred.  Ms. Pine demonstrated the nature of 
 
            the slap, which appears to be very light and a joking type 
 
            of slap.
 
            
 
                 Ms. Pine indicated claimant could not have gone across 
 
            the room as she described because the room is small and 
 
            there were too many people in it at the time.
 
            
 
                 Harold Brammer testified he has worked with defendant 
 
            employer for five years.  He said he drove by the claimant's 
 
            house in July 1988 and claimant was standing on a ladder 
 
            with paint in one hand and a brush in the other.
 
            
 
                 Defendants' exhibit A, page 7, reflects or responds to 
 
            claimant's request for a six month leave of absence to go to 
 
            Salt Lake City, Utah.  Defendants' exhibit A, page 8, shows 
 
            claimant's notice to defendant employer that she was 
 
            relocating to Salt Lake City and therefore was quitting at 
 
            the end of the day, November 24, 1988.
 
            
 
                 Defendants' exhibit A reflects an April 26, 1988 
 
            accident report whereby claimant pulled a muscle while 
 
            lifting a patient into a wheelchair; a March 1988 accident 
 
            report whereby claimant pulled muscles in the upper back; 
 
            and a February 13, 1988 accident report whereby claimant 
 
            contends the left side of the back, shoulder blade and lower 
 
            back is hurt.  There are several more, namely, June 27, 
 
            1988, September 16, 1987, 1986, 1985, etc.
 
            
 
                 Claimant's exhibit 13 is claimant's personnel file in 
 
            which there appears to be a lot of duplication of items, 
 
            particularly accident reports.  Not only is there 
 
            duplication within this file, but also in connection with 
 
            defendants' exhibits.
 
            
 
                 It is undisputed a slapping incident occurred at work 
 
            on May 7, 1988, with another staff member slapping claimant 
 
            in the shoulder.  It does not appear that this was a hard 
 
            slap and appears to have been in a friendly, joking way.
 
            
 
                 Although there was no excuse and the fact is one can be 
 
            hurt by a friendly or unfriendly blow, there is no medical 
 
            report that causally connects claimant's current complaint 
 
            to this incident.  In 1988 alone, there were three instances 
 
            prior to May 7, 1988, in which claimant reported an injury 
 
            (accident report) that affected, in part, similar parts of 
 
            claimant's body as it relates to claimant's May 7, 1988 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            alleged injury.  It appears claimant was released to return 
 
            to work on May 11, 1988, after her May 7, 1988 incident.
 
            
 
                 The parties agreed claimant was off work May 8, 1988 
 
            through August 31, 1988, minus May 16, 17, and 18 and two 
 
            hours on May 8.  It would appear the greater weight of 
 
            medical evidence would indicate claimant was off due to a 
 
            May 7, 1988 incident.  There is no evidence claimant was 
 
            permanently injured from the May 7, 1988 incident and no 
 
            medical evidence shows any permanent impairment or 
 
            restrictions as a result of any incident that occurred on 
 
            May 7, 1988.  It appears claimant quit work to be able to 
 
            transfer to Salt Lake City, Utah, with her husband.
 
            
 
                 The undersigned finds that claimant incurred a 
 
            temporary total disability as a result of a May 7, 1988 work 
 
            injury, which resulted from a staff member slapping the 
 
            claimant on her left shoulder or left arm.  The undersigned 
 
            finds that claimant incurred a temporary total disability 
 
            from May 8, 1988 through August 31, 1988, minus three and 
 
            one-quarter days.
 
            
 
                 The undersigned further finds that there is no medical 
 
            evidence and claimant has not carried her burden to show 
 
            that she has any permanency resulting from a May 7, 1988 
 
            work injury.
 
            
 
                 There is an 85.27 issue concerning medical benefits.  
 
            There is no evidence of any bills, plus there is no evidence 
 
            if there were any bills that they were a result of 
 
            claimant's May 7, 1988 injury.  Therefore, there is no award 
 
            to claimant for any medical benefits.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on May 7, 1988, 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 7, 
 
            1988, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury which arose out of and in 
 
            the course of her employment on May 7, 1988, as a result of 
 
            a staff member slapping claimant on the left upper 
 
            extremity, and that this resulted in claimant being 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            temporary totally disabled from May 8, 1988 through August 
 
            31, 1988, minus three and one-quarter days at the rate of 
 
            $231.58, which amounts to a total of 15.857 weeks.
 
            
 
                 Claimant has no permanent impairment or disability as a 
 
            result of any May 7, 1988 work injury.
 
            
 
                 Claimant is not entitled to payment of any medical 
 
            bills as there were no medical bills submitted into 
 
            evidence.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant temporary total 
 
            disability benefits at the rate of two hundred thirty-one 
 
            and 58/100 dollars ($231.58) for a period beginning May 8, 
 
            1988 through August 31, 1988, minus three and one-quarters 
 
            day, which amounts to a total of fifteen point eight five 
 
            seven (15.857) weeks of benefits.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 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 rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Lyle A Rodenburg
 
            Attorney at Law
 
            101 - 101 Park Bldg
 
            Council Bluffs IA 51501
 
            
 
            Ms Joanne Moeller
 
            Mr Dean Lerner
 
            Assistant Attorney General
 
            Hoover Building
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100; 5-1108
 
                                          5-1801; 5-2503
 
                                          Filed December 4, 1991
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DIANA VANDERPOOL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 885396
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1801
 
            Claimant awarded 15.857 weeks of temporary total disability 
 
            after a finding that claimant's injury arose out of and in 
 
            the course of claimant's employment and that there was a 
 
            causal connection.
 
            
 
            5-1803
 
            No permanent disability found.
 
            
 
            5-2503
 
            Claimant not entitled to 85.27 medical benefits.  No bills 
 
            presented.
 
            
 
            
 
 
         
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         KAREN BANGHART,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 885687
 
         COMMTRON CORPORATION,      
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL,       
 
                     
 
              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 
 
         January 25, 1991 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Claimant's permanency began on November 30, 1989, as stipulated 
 
         by the parties.  The designation of November 3, 1989, in the 
 
         arbitration decision was an error.  Defendants shall pay benefits 
 
         accordingly.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                 ________________________________
 
                                         BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th St., Ste 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. James C. Huber
 
         Attorney at Law
 
         418 6th Ave.
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309-2421
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                          9999
 
                                          Filed November 17, 1992
 
                                          Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KAREN BANGHART,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 885687
 
            COMMTRON CORPORATION,      
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed January 25, 
 
            1991, with short additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN BANGHART,
 
         
 
              Claimant,
 
         
 
         VS.                             File No.  885687
 
         
 
         COMMTRON CORPORATION,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Karen 
 
         Banghart, now known as Karen Walker, as a result of injuries to 
 
         the body as a whole which allegedly occurred on April 21, 1988.  
 
         Defendants denied compensability for the injury.  The issues for 
 
         determination are as follows:
 
         
 
              1. Arising out of and in the course of employment.
 
              
 
              2. Causal connection.
 
                 a)  Healing period.
 
                 b)  Industrial disability.
 
                 c)  Medical benefits.
 
              
 
              3. Healing period entitlement.
 
              
 
              4. Industrial disability entitlement; and
 
              
 
              5. Medical benefits entitlement.
 
         
 
              This case was heard and fully submitted at Des Moines, Iowa, 
 
         on November 29, 1990.  The record in the proceeding consists of 
 
         joint exhibits 1 through 6, claimant's exhibits 7 through 10 and 
 
         defendants' exhibit B.  Defendants offered exhibit A as an offer 
 
         of proof and it was not read nor considered by the undersigned.  
 
         Letters written by the attorneys were offered and considered.  
 
         While these exhibits helped define the issues, they were given 
 
         little weight.
 
         
 
         
 
         BANGHART V. COMMTRON CORP
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having considered all the evidence received the following 
 
         findings of fact are made:
 
         
 
              Claimant, Karen Banghart, now known as Karen Walker, was 33 
 
         years old at the time of the hearing.
 
         
 
              Claimant, on April 21, 1988, worked for employer as a 
 
         graphic artist.  In that capacity she was required to perform a 
 
         moderate amount of repetitive overhead lifting.  Claimant had a 
 
         congenital cervical rib that was aggravated by the repetitive 
 
         overhead work as a graphic artist.  Alexander Matthews, M.D., a 
 
         thoracic and vascular surgeon opined that claimant's symptoms of 
 
         both the right and left upper extremities are work related 
 
         (exhibit 1, page 68).  It is found that on April 21, 1988, 
 
         claimant sustained an injury to the right and left upper 
 
         extremities arising out of and in the course of employment with 
 
         employer.
 
         
 
              Claimant testified that she had no similar symptoms in her 
 
         upper extremities prior to April 21, 1988.  This was refuted by 
 
         defendants use of exhibit 1 page 72 during cross-examination.  
 
         This exhibit revealed a history given by claimant of similar 
 
         episodes.  Claimant also testified that she was not satisfied 
 
         with the tentative diagnosis of carpal tunnel syndrome given by 
 
         the first two doctors that she saw.  Claimant's testimony when 
 
         considered in connection with the exhibits leads the undersigned 
 
         to the conclusions that she was aware of the cervical rib problem 
 
         and had previous symptomology.  Because of this, it is also found 
 
         that claimant is an unreliable historian.
 
         
 
              Claimant was taken off work by Daniel A. Keat, D.C., on 
 
         April 25, 1988, due to the work-related injury (ex. 1, p. 75).  
 
         Claimant returned to work with defendant employer on May 31, 1988 
 
         and worked through June 1, 1988.  Claimant then left work on a 
 
         leave of absence starting June 1, 1988.  She was officially taken 
 
         off work by Dr. Keat on June 3, 1988.  Claimant was then under 
 
         continuous medical care from a multitude of specialists resulting 
 
         in bilateral thoracic outlet syndrome surgery.
 
         
 
              On March 28, 1989, claimant was released to work by W.C. 
 
         Keening, Jr., M.D.  Defendant employer made available a light 
 
         duty telemarketing position on April 19, 1989.  Claimant sat 
 
         through one half day of training and then walked off the job 
 
         alleging it to be too difficult.  Claimant testified that her 
 
         duties on April 19, 1989 consisted of sitting and holding a phone 
 
         receiver to her head.  Claimant stated that she held the receiver 
 
         with her right hand.  Dr. Keening was dismayed at claimant's 
 
         failure to follow through with this job (ex. 1, p. 37).  The 
 
         employer's offer of the telemarketing position was made in good 
 
         faith and did not violate claimant's work restrictions.  Claimant 
 
         was not motivated to return to work.  Claimant refused to accept 
 
         suitable work consistent with her restrictions on April 19, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         BANGHART V. COMMTRON CORP
 
         Page 3
 
         
 
         
 
         No healing period benefits are allowed after that date, and 
 
         before surgery.  Iowa Code section 85.33(3).
 
         
 
              Claimant is entitled to healing period benefits starting on 
 
         April 25, 1988 and continuing through April 18, 1989.  Defendants 
 
         shall receive credit for any salary payments made for work on May 
 
         31, 1988 and June 1, 1988.
 
         
 
              It should be noted that claimant stated at trial that she 
 
         did not attempt to perform the telemarketing job on April 19, 
 
         1989.  Instead she merely observed.  This is contrary to her 
 
         statement in exhibit 4, page 146.
 
         
 
              Claimant then had surgery for her thoracic outlet syndrome 
 
         on September 6, 1989.  She was released to return to work on 
 
         November 3, 1989 by Scott Neff, D.O. (ex. 1, p. 9).  Claimant is 
 
         also entitled to healing period starting September 6, 1989 
 
         through November 3, 1989.
 
         
 
              The final healing period issue to be decided concerns the 
 
         allegations of lost time due to depression.  Claimant now alleges 
 
         to be totally disabled due to a major depressive disorder.  The 
 
         exact cause of the depression is in dispute.  Dr. Neff opined 
 
         that the depression is not work related (ex. 1, p. 7).  Michael 
 
         Taylor, M.D., states that there is a causal connection.  Dr. 
 
         Taylor's opinion is rejected notwithstanding his psychiatric 
 
         expertise.  Dr. Neff is more familiar with claimant's overall 
 
         situation as he was one of the first doctors to see claimant.  
 
         Dr. Neff's report of December 20, 1989 (ex. 1, p. 7), relates 
 
         better to the evidence presented at hearing.  Furthermore, Dr. 
 
         Taylor does not explain how the addiction to crank, the physical 
 
         abuse, alcoholism, attempted suicide and numerous other family 
 
         problems failed to impact the major depressive disorder.  Since 
 
         Dr. Taylor did not discuss those stress factors, it is assumed 
 
         that he did not have a complete and accurate history.  As of 
 
         December 20, 1989, defendants are no longer responsible for any 
 
         of claimant's stress related or psychiatric expenses.  Claimant 
 
         also appeared calm and collected at trial.  She held together 
 
         very well while under vigorous cross-examination.  No lost time 
 
         shall be allowed for the alleged psychiatric condition as 
 
         claimant has failed to prove by a preponderance of the evidence 
 
         that the condition is caused by the April 21, 1988 injury.
 
         
 
              Claimant has also alleged that chemical dependency is 
 
         related to the work injury.  This argument is rejected.  Claimant 
 
         stated that she had an addictive personality and was involved 
 
         with the wrong crowd.  No direct link to the work injury was 
 
         made.  No benefits shall be allowed for the chemical dependency 
 
         problem as no causal connection exists.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant alleged that her attempted suicide was work 
 
         related.  This claim is also rejected.  Claimant testified that 
 
         she attempted suicide as a result of her eviction from the 
 
         vocational rehabilitation dormitory.  Claimant was apparently
 
         
 
         
 
         BANGHART V. COMMTRON CORP 
 
         Page 4
 
         
 
         
 
         ejected from the dormitory due to her disruptive behavior and an 
 
         unexplained situation involving her nephew.  None of the 
 
         precipitating factors of the suicide are directly related to the 
 
         work injury of April 21, 1988.  Therefore, no benefits shall be 
 
         allowed for that incident.
 
         
 
              The issue of medical benefits must be addressed.  Claimant 
 
         is entitled to full payment of all medical expenses related to 
 
         the thoracic outlet syndrome.  This includes the hotel and travel 
 
         expenses for the Colorado trip.  Claimant's mother accompanied 
 
         her on this trip and assisted her during convalescence.  No 
 
         provision under the code allows reimbursement for claimant's 
 
         mother's expenses.  Nor is there any provision for reimbursement 
 
         of telephone expenses.  Defendants are not responsible for those 
 
         costs.  However, the hotel costs are not to be split in half.  
 
         Claimant is entitled to full reimbursement for a single room 
 
         rate.
 
         
 
              Defendants allege authorization as a defense.  Defendants 
 
         denied the date of injury in answer to claimant's petition.  
 
         Defendants also denied the injury in the prehearing report and 
 
         order approving the same.  Agency precedent states that an 
 
         employer may not guide the course of treatment while denying that 
 
         the injury arose out of and in the course of employment.  
 
         Defendants have failed to prove authorization as a defense due to 
 
         the denial of liability.
 
         
 
              Claimant alleges the need for ongoing physical therapy.  It 
 
         is doubtful that claimant will follow through with such a 
 
         program.  Claimant unilaterally elected out of a similar program 
 
         in January 1989 (ex. 1, p. 67).  While claimant is entitled to 
 
         future medical care for the thoracic outlet syndrome, she has 
 
         failed to meet her burden of proof in this situation.  Claimant's 
 
         request for physical therapy appears to be related more to the 
 
         nonwork major depressive disorder than to the work-related 
 
         thoracic outlet syndrome.
 
         
 
              The final issue to be resolved concerns industrial 
 
         disability.
 
         
 
              Claimant is a 33-year-old female who did not graduate from 
 
         high school, but does have a GED.  She completed 11 months of a 
 
         12-month graphic arts program at Des Moines Area Community 
 
         College (DMACC).  She has a work history strong in the graphic 
 
         arts field.  Claimant has a problem with work absenteeism.  
 
         Claimant has strong clerical skills.  Claimant's work 
 
         restrictions are best described as no use of the upper 
 
         extremities at or above shoulder level, no medium or heavy 
 
         repetitive work.  Claimant stated that her left arm is no longer 
 
         symptomatic while her right arm is still painful.  Claimant has a 
 
         permanent partial impairment of 10 to 24 percent to the body as a 
 
         whole.  Claimant has had difficulty in returning to work due to 
 
         numerous personal and family problems.  Claimant has excellent 
 
         communication skills.  Claimant was earning $8.10 per hour at the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         BANGHART V. COMMTRON CORP 
 
         Page 5
 
         
 
         
 
         time of the injury.  Claimant will no longer be able to pursue 
 
         the graphic arts area due to work restrictions.  Claimant is 
 
         employable as a clerical worker at a range of $5 to $7 per hour.  
 
         Claimant has sustained a loss of earnings of $1.10 to $3.10 per 
 
         hour as a result of the thoracic outlet syndrome.  Employer made 
 
         a good faith effort to reemploy claimant.  It is found that 
 
         claimant has incurred a 20 percent industrial disability to the 
 
         body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on April 21, 1988, which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976);  Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967)
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 
 
         N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co.,.158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963). Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum, 
 
         252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              Claimant has met her burden in proving that the bilateral 
 
         thoracic outlet syndrome arose of out and in the course of 
 
         employment with employer.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 21, 1988, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fisher, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.          
 
         Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
         N.W.2d 732 (1955). The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         
 
         
 
         BANGHART V. COMMTRON CORP 
 
         Page 6
 
         
 
         
 
         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).
 
         
 
              Claimant has proven the causal connection between her work 
 
         injury of April 21, 1988 and disability and medical benefits.  
 
         Claimant failed to meet her burden of proof in establishing that 
 
         the chemical dependency, attempted suicide and depression are 
 
         causally related to the work injury.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              "Claimant is not entitled to reimbursement for medical bills 
 
         unless he shows that he paid them from his own funds." See Caylor 
 
         v. Employers Mut.  Cas. Co., 337 N.W.2d 890 (Iowa App. 1983).
 
         
 
              If the employer denies the compensability of an injury under 
 
         the act, it cannot assert that the employee's medical treatment 
 
         was unauthorized.  Holbert v. Townsend Engineering Co., 
 
         Thirty-second Biennial Report of the Industrial.Commissioner 78, 
 
         80 (review decision 1975).
 
         
 
              Claimant has proven entitlement to medical benefits as 
 
         outlined in the findings of fact.  Claimant has failed to prove 
 
         statutory entitlement to reimbursement for telephone bills and 
 
         claimant's mother's expenses.
 
         
 
              Section 85.34(l), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or, (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
         Commissioner Decisions, 485 1984.  Iowa Code section 85.33(3).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If an employee is temporarily, partially disabled and the 
 
              employer for whom the employee was working at the time of 
 
              injury offers to the employee suitable work consistent with 
 
              the employee's disability the employee shall accept the 
 
              suitable work, and be compensated with temporary partial 
 
              benefits.  If the employee refuses to
 
         
 
         
 
         BANGHART V. COMMTRON CORP 
 
         Page 7
 
         
 
         
 
              accept the suitable work the employee shall not be 
 
              compensated with temporary partial, temporary total, or 
 
              healing period benefits during the period of the refusal.
 
         
 
         Iowa Code section 85.33(3)
 
         
 
              Claimant is entitled to healing period benefits as outlined 
 
         in the findings of fact.  Claimant has failed to prove 
 
         entitlement to healing period benefits starting on April 19, 1989 
 
         and ending on September 5, 1989.
 
         
 
              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, 
 
         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
 
         
 
         
 
         BANGHART V. COMMTRON CORP 
 
         Page 8
 
         
 
         
 
         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).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)"u" provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              The parties stipulated that this injury should be rated 
 
         industrially if liability is proven. upon considering all the 
 
         material factors, it is found that the evidence in this case 
 
         supports an award of 20 percent permanent partial disability as a 
 
         result of the shoulder injuries which entitles the claimant to 
 
         recover 100 weeks of benefits under Iowa Code section 
 
         85.34(2)"u".
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay claimant fifty-nine and five-sevenths 
 
         (59 5/7) weeks of compensation for healing period at the rate of 
 
         two hundred seven and 71/100 dollars ($207.71) per week for the 
 
         periods April 25, 1988 through April 18, 1989 and September 6, 
 
         1989 through November 3, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is further ordered that defendants pay claimant one 
 
         hundred (100) weeks of compensation for permanent partial 
 
         disability at the rate of two hundred seven and 71/100 dollars 
 
         ($207.71) per week payable commencing November 3, 1989.
 
         
 
              It is further ordered that defendants pay all Iowa Code 
 
         section 85.27 medical expenses causally related to the thoracic 
 
         outlet syndrome as outlined in the findings of fact.
 
         
 
         
 
         BANGHART V. COMMTRON CORP
 
         Page 9
 
         
 
         
 
              It is further ordered that defendants pay claimant interest 
 
         pursuant to Iowa Code section 85.30 from the date each weekly 
 
         payment came due until the date of actual payment.
 
         
 
              It is further ordered that defendants shall receive credit 
 
         for benefits previously paid.
 
         
 
              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 25th day of January, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                         MARLON D. MORMANN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Channing Dutton
 
         Attorney at Law
 
         1200 35th St. STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. James Huber
 
         Attorney at Law
 
         418 6th Ave
 
         500 Liberty Bldg
 
         Des Moines, Iowa 50309-2421
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51100 51803 51802 52500
 
                                         Filed January 25, 1991
 
                                         Marlon D. Mormann
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN BANGHART,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No.  885687
 
         COMMTRON CORPORATION,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100
 
         
 
              Claimant performed repetitive overhead work which caused an 
 
         injury to her shoulder and body known as thoracic outlet 
 
         syndrome.
 
         
 
         51802 52500
 
         
 
              Claimant entitled to healing period and medical care for 
 
         shoulder injuries.  Claimant failed to prove causal connection to 
 
         psychiatric and drug addiction problems.
 
         
 
         51803
 
         
 
              Claimant, age 31 with a GED, had bilateral shoulder induries 
 
         with permanent, no repetitive use of shoulder restrictions who 
 
         was not motivated to work, entitled to 20 percent industrial 
 
         disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KRISTI THROGMARTIN (formerly    :
 
            BRAINARD-THROGMARTIN, and       :
 
            RICKY THROGMARTIN, Deceased,    :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 885869
 
            PRECISION PULLEY, INC.,         :
 
                                            :          R E M A N D
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This matter is on remand from the Iowa District Court 
 
            for Wapello County.  The appeal decision in this matter 
 
            filed January 29, 1992 adopted the deputy's proposed 
 
            decision which had found that the claimant was entitled to 
 
            death benefits as a common-law spouse.  On judicial review 
 
            the district court held that the evidence of a common-law 
 
            marriage did not meet the legal test set forth in In Re 
 
            Estate of Pullman, 228 N.W.2d 187 (Iowa 1975) and reversed 
 
            the award made by the agency.  Pursuant to a motion under 
 
            R.C.P. 179(b), the district court modified its prior order 
 
            and ordered "that this case shall be and is hereby remanded 
 
            to the industrial commissioner for further ruling upon the 
 
            dependency question (sections 85.31(1)"d" and 85.44)."  The 
 
            decision in this matter will be made as required by the 
 
            district court's order.
 
            
 
                                      ISSUE
 
            
 
                 The issue in this matter on remand is whether the 
 
            claimant is entitled to death benefits pursuant to Iowa Code 
 
            sections 85.31(1)"d" and 85.44.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                  FINDINGS OF FACT
 
            
 
                 The findings of fact of the deputy's proposed decision 
 
            filed December 13, 1990 which was adopted in the appeal 
 
            decision filed January 29, 1992 are incorporated herein by 
 
            reference as if set out in full.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Iowa Code section 85.31(1)"d" provides for death 
 
            benefits "[t]o all other dependents as defined in section 
 
            85.44 for the duration of the incapacity from earning."  
 
            Iowa Code section 85.44 provides:
 
            
 
                   In all other cases, a dependent shall be one 
 
                 actually dependent or mentally or physically 
 
                 incapacitated from earning.  Such status shall be 
 
                 determined in accordance with the facts as of the 
 
                 date of the injury.  In such cases if there is 
 
                 more than one person, the compensation benefit 
 
                 shall be equally divided among them.  If there is 
 
                 no one wholly dependent and more than one person 
 
                 partially dependent, the compensation benefit 
 
                 shall be divided among them in the proportion each 
 
                 dependency bears to their aggregate dependency.
 
            
 
                 The district court's ruling in this case has found that 
 
            claimant is not entitled to benefits as a surviving spouse 
 
            because it found she was not a common-law spouse.  If 
 
            claimant is entitled to benefits, her entitlement would be 
 
            as a dependent other than a spouse.  It must be decided on 
 
            remand whether claimant is entitled to benefits under Iowa 
 
            Code sections 85.31(1)"d" and 85.44.
 
            
 
                 The Iowa Supreme Court has interpreted the statutory 
 
            language that was the predecessor of the current statutory 
 
            language.  In Baldwin v. Sullivan, 204 N.W. 420, 201 Iowa 
 
            955, the court held that while the decedent contributed to 
 
            the support and supported someone he was living with he was 
 
            under no legal or moral obligation to support her.  "The 
 
            statute...was to provide for the family of the deceased and 
 
            those lawfully dependent upon him and not otherwise."  
 
            Baldwin, supra at 201 Iowa 955, 961.
 
            
 
                 Professor Larson has discussed when dependency in fact 
 
            can be established.  He seems to suggest in discussing cases 
 
            that there must be some family relationship (e.g. parent, 
 
            child or sibling) in order for an individual to be an actual 
 
            dependent.   2 Larson, Workmen's Compensation Law, section 
 
            63.00 et seq beginning at 11-109.  That treatise also 
 
            discusses what is characterized as the intentional illicit 
 
            relationship.  In Larson, supra, section 63.43 at 11-182, it 
 
            is noted that there is probably no majority view on whether 
 
            a claimant would be entitled to benefits in an intentional 
 
            illicit relationship.  The cases, however, that are 
 
            favorable to the claimant generally find entitlement to 
 
            benefits based upon a finding that a common-law marriage 
 
            existed.  The law of the instant case based upon district 
 
            court's decision is that claimant was not a common-law 
 
            spouse.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Based upon Baldwin v. Sullivan, supra, and the 
 
            discussion in Larson, supra, the better reasoned opinion 
 
            would be that in order for an individual to be actually 
 
            dependent under Iowa Code sections 85.31(1)"d" and 85.44, 
 
            the decedent must be under some legal or moral obligation to 
 
            support the claimant.  The moral obligation would extend 
 
            only to those individuals who have a family relationship to 
 
            the decedent (e.g. parent, sibling, step-children).  
 
            Claimant had no family relationship to decedent.  The 
 
            decedent was under no moral obligation to support claimant.  
 
            In the instant case there is no evidence that decedent was 
 
            under a legal obligation to support the claimant.  Claimant 
 
            was not actually dependent upon the decedent at the time of 
 
            decedent's death within the meaning of Iowa Code section 
 
            85.44..
 
            
 
                 It should be noted that the determination above is 
 
            consistent with the prior agency decision wherein it was 
 
            found that claimant, as a common-law spouse, was dependent 
 
            upon the decedent.  The prior determination was made in 
 
            order to make a determination and award pursuant to Iowa 
 
            Code section 85.31(1)"a".  The determination on remand is 
 
            whether claimant was actually dependent upon the decedent 
 
            within the meaning of Iowa Code sections 85.31(1)"d" and 
 
            85.44.
 
            
 
                 Under Iowa Code section 85.44 an individual may also be 
 
            a dependent if "mentally or physically incapacitated from 
 
            earning."  The party who would suffer loss if an issue were 
 
            not established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).  
 
            Claimant has the burden of proving that she was "mentally or 
 
            physically incapacitated" from earning as of the date of 
 
            decedent's injury.  It cannot be found from this record that 
 
            claimant has met her burden of proving that she was mentally 
 
            or physically incapacitated from earning as of the date of 
 
            decedent's injury.
 
            
 
                 Claimant is not entitled to death benefits pursuant to 
 
            Iowa Code sections 85.31(1)"d" and 85.44.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   4
 
            
 
            
 
 
 
 
 
            
 
                                           ---------------------------
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            219 First Avenue E
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 West Second Street
 
            P O Box 716
 
            Ottumwa, Iowa  52501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1902
 
                                            Filed January 24, 1994
 
                                            BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KRISTI THROGMARTIN (formerly    :
 
            BRAINARD-THROGMARTIN, and       :
 
            RICKY THROGMARTIN, Deceased,    :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 885869
 
            PRECISION PULLEY, INC.,         :
 
                                            :          R E M A N D
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            1902
 
            On remand from district court it was found that claimant, a 
 
            live-in girlfriend of decedent, was not an actual dependent 
 
            for purposes of Iowa Code section 85.31(1)"d" and 85.44.  
 
            (The district court had ruled that claimant was not a 
 
            common-law spouse.)  The term actual dependent in Iowa Code 
 
            section 85.44 refers to someone whom the decedent employee 
 
            has either a legal or moral obligation to support.  The 
 
            moral obligation to support only includes individuals having 
 
            a family relationship, e.g. parents, siblings, step-child, 
 
            to the decedent.  The decedent was under no legal or moral 
 
            obligation to support claimant and therefore claimant (who 
 
            the district court had ruled was not a common-law spouse) 
 
            was not an actual dependent of decedent.  Claimant was not 
 
            entitled to death benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KRISTI THROGMARTIN, (formerly :
 
            BRAINARD-THROGMARTIN), and    :
 
            RICKY THROGMARTIN, Deceased,  :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 885869
 
            vs.                           :
 
                                          :            D E A T H
 
            PRECISION PULLEY, INC.,       :
 
                                          :         B E N E F I T S
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding for death benefits upon claimant's 
 
            petition filed December 5, 1988.  Claimant alleges that she 
 
            is the widow of Ricky Throgmartin ("Ricky"), who died in an 
 
            industrial accident on May 26, 1988.  She now seeks death 
 
            benefits under the Iowa Workers' Compensation Act from 
 
            Ricky's employer, Precision Pulley, Inc., and its insurance 
 
            carrier, Liberty Mutual Insurance Company.
 
            
 
                 Hearing in this matter was had in Ottumwa, Iowa, on 
 
            March 29, 1990.  The record consists of joint exhibits 1 
 
            through 17 and the testimony of the following witnesses:  
 
            Kristi Throgmartin, Janet Brainard, Delores Throgmartin, 
 
            David Holmes, James Tangeman, Keith DeGraaf, Krista Harms, 
 
            John Hamburg, Dennis Brass, James Bracket and Max Wagaman.  
 
            In addition, official notice was taken of the contents of 
 
            the legal file.  This includes affidavits of:  David Holmes, 
 
            John Hamburg, Keith DeGraaf, Stan Butler, Arlan Van 
 
            Dusseldorp, Jim Tangeman and Connie Quinby.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that Ricky Throgmartin sustained an injury 
 
            causing death arising out of and in the course of his 
 
            employment with Precision Pulley, Inc., on May 26, 1988; 
 
            that no claim is made for disability benefits; that if 
 
            claimant is found to be Ricky Throgmartin's widow, the 
 
            appropriate rate of death benefits is $265.16; that medical 
 
            benefits are not in dispute; that defendants paid no 
 
            benefits on a voluntary basis prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant is entitled to death benefits based on an alleged 
 
            common law marriage to Ricky Throgmartin and whether she was 
 
            his dependent at the time of death; whether a penalty should 
 
            be imposed under Iowa Code section 86.13; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Ricky Throgmartin, who died in an industrial accident 
 
            on May 26, 1988, met claimant Kristi Throgmartin in March, 
 
            1986.  They began dating and Kristi began frequently staying 
 
            with Ricky in about October, 1986.  In November, Ricky 
 
            rented his own apartment (he had previously had a roommate) 
 
            and in December, 1986, Ricky gave Kristi an engagement ring 
 
            and they began cohabiting.  In July 1987, they rented a 
 
            home, although only Ricky signed the lease agreement.
 
            
 
                 Kristi, a 1983 high school graduate, was born on 
 
            October 28, 1964 and was 25 years of age at the time of 
 
            hearing.  Prior to moving in with Ricky, she was wholly 
 
            supported by her parents.  Afterwards, she was wholly 
 
            supported by Ricky and, up until the time of his death, had 
 
            never worked outside the home.  As of May 26, 1988, Kristi 
 
            was wholly dependent upon Ricky Throgmartin for her support.
 
            
 
                 When Ricky and Kristi became engaged, they originally 
 
            wanted to marry immediately, but were dissuaded by Kristi's 
 
            mother, who wanted a religious ceremony which the family 
 
            could not at that time afford.  From October 1986 on, 
 
            claimant irregularly used the name Throgmartin, but used 
 
            Brainard in correspondence because she had not gone through 
 
            a formal marriage ceremony.
 
            
 
                 From July 1987 onward, Ricky referred to Kristi as his 
 
            wife (as opposed to "girl friend") and referred to her 
 
            parents as "Mom and Dad" and, on occasion, publicly as his 
 
            mother- and father-in-law.  Kristi's father cosigned a note 
 
            for Ricky when the purchased a waterbed and her mother 
 
            cosigned for Ricky on a car loan after July 1987.
 
            
 
                 From July 1987 until Ricky's death, he and Kristi lived 
 
            together in every respect as husband and wife, although they 
 
            planned a ceremonial marriage service for June 25, 1988.  
 
            During this time, Kristi considered herself to be married to 
 
            Ricky, and, as shall be seen, Ricky did likewise.
 
            
 
                 Janet Brainard is Kristi's mother.  Both Kristi and 
 
            Ricky held themselves out to her and her husband as being 
 
            married.  Ricky called Janet "Mom" and referred to her as 
 
            his mother-in-law.  He and Kristi stated that they felt they 
 
            were married and that formal papers did not make the 
 
            marriage.  Ricky told Kristi's father Larry that Kristi was 
 
            his wife and that he wanted to take care of her.  In the 
 
            same conversation, overheard by Janet, Kristi stated that 
 
            she did not expect her parents to take care of her, as she 
 
            and Ricky were married.
 
            
 
                 Delores Throgmartin is Ricky's mother.  She testified 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that she considered Kristi to be her daughter-in-law and 
 
            that although Kristi and Ricky were not married in a formal 
 
            ceremony they had a relationship "like" that of husband and 
 
            wife.  She noted that her grandchildren call Kristi "aunt" 
 
            and that her own children consider Kristi to be a sister.
 
            
 
                 However, Delores Throgmartin's actions have not all 
 
            been consistent with the existence of a marital relationship 
 
            between Kristi and Ricky.  She opened an estate for Ricky 
 
            and was appointed administrator.  The report and inventory 
 
            denied that Ricky left a surviving spouse (although Delores 
 
            testified that she did not read the estate papers when she 
 
            signed them).  She told at least one obituary writer that 
 
            Ricky was unmarried and intended to marry Kristi on June 25.
 
            
 
                 David Holmes is pastor of the United Methodist Church 
 
            in Oskaloosa, Iowa, where Kristi and Ricky planned their 
 
            ceremonial wedding.  He both testified at hearing and 
 
            submitted an affidavit.  He counseled with Kristi and Ricky 
 
            on five separate occasions in advance of the planned wedding 
 
            ceremony, although neither of the principals or their 
 
            parents were members of his church.  He noted that Ricky 
 
            considered himself married to Kristi and indicated that a 
 
            formal ceremony was unnecessary except for their wish to 
 
            include the families in their pronouncement of love and 
 
            commitment.  Rev. Holmes agreed that Ricky and Kristi were 
 
            married in the eyes of the Lord even though a nonceremonial 
 
            wedding is apparently contrary to the teachings of his own 
 
            denomination.  In any event, when Kristi asked him 
 
            immediately after Ricky's death whether he thought they 
 
            would still be married in Heaven, Rev. Holmes agreed they 
 
            would be.
 
            
 
                 Although Ricky never wore the wedding ring they had 
 
            purchased in anticipation of the formal ceremony, he was 
 
            buried with it on his finger.
 
            
 
                 John Hamburg testified at hearing and also submitted an 
 
            affidavit.  He was Ricky's life-long friend and former 
 
            roommate and was to be best man at the formal wedding.  He 
 
            noted that beginning in 1986 Ricky began referring to 
 
            Kristi's parents as Mom and Dad and at some point began 
 
            routinely and publicly to refer to Kristi as his wife.  Only 
 
            three days before his untimely death, Mr. Hamburg and Ricky 
 
            had a discussion while being fitted for tuxedoes.  Ricky 
 
            referred to the upcoming wedding ceremony as "nice for other 
 
            people," but that as to he and Kristi, they had been married 
 
            for a long time.
 
            
 
                 By contrast, Hamburg noted that Ricky had previously 
 
            cohabited with another lady whom he later married long 
 
            before he met Kristi, but never referred to that lady as a 
 
            "wife" during the time they merely cohabited and, prior to 
 
            the ceremonial marriage in that case, often commented about 
 
            the amount of time he had remaining until he was to be 
 
            married.
 
            
 
                 It is of substantial interest that Hamburg credibly 
 
            described Ricky as unaware (apparently due to his youth and 
 
            inexperience) that he could use Kristi's name on various 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            legal documents before a formal marriage ceremony.  
 
            Defendants have pointed out numerous opportunities for Ricky 
 
            to disclose a marital relationship on legal papers where he 
 
            did not (and nor did she).  For example, Kristi never took 
 
            legal steps to change her name to Throgmartin prior to 
 
            Ricky's death (although retaining a maiden name is scarcely 
 
            uncommon), did not prepare joint income tax returns with 
 
            Ricky, was not a signatory to Ricky's lease, was not a party 
 
            on Ricky's savings account, did not intervene in estate 
 
            proceedings, was not a signatory on Ricky's waterbed and 
 
            automobile loans, nor a beneficiary of his life insurance, 
 
            was not a beneficiary of Ricky's health insurance policy, 
 
            was not listed as a spouse at Precision Pulley and was not 
 
            listed as a spouse by Ricky on Internal Revenue form W-4.  
 
            Given the eyewitness testimony of friends and family 
 
            discussed in this decision, it is found as fact that these 
 
            lapses on Ricky's part were due to his lack of 
 
            sophistication as to common law marriages and not because he 
 
            did not deem himself married to Kristi.
 
            
 
                 James Tangeman testified at hearing and signed an 
 
            affidavit contained in the legal file.  He knew Ricky and 
 
            Kristi very well on a social basis and believed the 
 
            relationship Ricky and Kristi shared was that of husband and 
 
            wife.  He noted that Ricky most frequently referred to 
 
            Kristi by name, but often as "my wife."  However, in 
 
            mid-1987, Kristi was introduced to Tangeman's fiancee as 
 
            Ricky's "fiancee."  Nonetheless, he considered that Kristi 
 
            and Ricky enjoyed the general reputation of being married.  
 
            On the other hand, as is also the case with respect to Keith 
 
            DeGraaf and Max Wagaman, there is a weak showing as to the 
 
            extent to which these witnesses were aware of any general 
 
            reputation as opposed to their individual opinions.
 
            
 
                 Keith DeGraaf testified at hearing and also submitted 
 
            an affidavit.  In his affidavit, he indicated that Ricky on 
 
            occasion referred to Kristi as his wife, but was unable to 
 
            recall whether this was the case at hearing.  DeGraaf was a 
 
            coworker with Ricky and also played basketball with him.  He 
 
            met Kristi but once.  He also indicated that Kristi and 
 
            Ricky were generally reputed to be married.
 
            
 
                 The legal file contains an affidavit executed by Stan 
 
            Butler, Ricky's foreman at work and also a social friend of 
 
            both Ricky and Kristi.  In his opinion, Ricky and Kristi 
 
            lived together as man and wife and Ricky considered his 
 
            relationship with Kristi as that of husband and wife.  Ricky 
 
            referred to Kristi as his wife, or as his "old lady" on 
 
            occasion (but not in her presence).
 
            
 
                 Arlan Van Dusseldorp executed an affidavit contained in 
 
            the legal file.  He knew Ricky through work and considered 
 
            himself to be a good friend for some 3-4 months prior to his 
 
            death.  He knew that Ricky and Kristi lived together in a 
 
            relationship that Van Dusseldorp considered husband and 
 
            wife, and noted that Ricky often referred to Kristi as his 
 
            wife.
 
            
 
                 With respect to general reputation, Van Dusseldorp 
 
            asserted that several fellow employees were surprised to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            learn that Ricky and Kristi had not been formally wed, as 
 
            they assumed that a marriage relationship existed.  This is 
 
            the best and most specific evidence as to general reputation 
 
            contained in the record.
 
            
 
                 Connie Quinby executed an affidavit contained in the 
 
            file.  She and her husband were social friends of Ricky and 
 
            Kristi, and her husband was a coworker with Ricky.  
 
            According to her, Ricky most frequently referred to Kristi 
 
            by name, but also commonly referred to her as his wife.
 
            
 
                 Max Wagaman was a next door neighbor to Ricky and 
 
            Kristi at the time of Ricky's death.  He had a speaking 
 
            acquaintance relationship with Ricky and on one or two 
 
            occasions shot baskets with him.  He agreed he had no social 
 
            relationship with Ricky and Kristi and never visited in 
 
            their home.  Shortly before his death, Ricky referred to 
 
            Kristi as his "girl friend" or "fiancee," and Wagaman 
 
            believed the general reputation in the neighborhood was that 
 
            Ricky and Kristi were not known to be husband and wife.
 
            
 
                 Ricky's use of the term "girl friend" or "fiancee" with 
 
            this speaking acquaintance is inconsistent with a marital 
 
            relationship, but does not, standing by itself, indicate 
 
            that Ricky and Kristi did not generally hold themselves out 
 
            in a public manner as being husband and wife.
 
            
 
                 Based upon the foregoing it is found as fact that as of 
 
            May 26, 1988, Ricky and Kristi were cohabiting as husband 
 
            and wife, that each considered himself or herself to be 
 
            married to the other and publicly held themselves out as 
 
            husband and wife.  It is further found that Kristi was 
 
            wholly dependent for her support upon her husband at the 
 
            time of his death.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 85.31, when death results 
 
            from an industrial accident, as is here the case, the 
 
            employer shall pay those dependents "who were wholly 
 
            dependent on the earnings of the employee for support at the 
 
            time of the injury, during their lifetime" compensation 
 
            based on the average weekly earnings of the deceased 
 
            employee.  Pursuant to section 85.42, a surviving spouse is 
 
            conclusively presumed to be wholly dependent upon the 
 
            deceased employee with two exceptions not relevant here.
 
            
 
                 An unmarried cohabitant does not have the right to 
 
            death benefits under the Iowa Workers' Compensation Act.  
 
            Baldwin v. Sullivan, 201 Iowa 955, 204 N.W. 420 (1925).  
 
            Therefore, Kristi Throgmartin's entitlement to death 
 
            benefits depends upon whether she has established a common 
 
            law marriage to Ricky Throgmartin in effect at the time of 
 
            his death.
 
            
 
                 Common law marriages have long been recognized in the 
 
            state of Iowa.  Laws v. Griep, 332 N.W.2d 339 (Iowa 1983).  
 
            A valid common law marriage requires proof of the following 
 
            three elements:  (1) intent and agreement to be husband and 
 
            wife, in praesenti; (2) continuous cohabitation; and, (3) a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            public declaration or holding out that a marital 
 
            relationship exists.  In re Estate of Dallman, 228 N.W.2d 
 
            187 (Iowa 1975).
 
            
 
                 There is no public policy in the state of Iowa favoring 
 
            common law marriage.  In re Marriage of Winegard, 278 N.W.2d 
 
            505 (Iowa 1979).  A claim of such a marriage is regarded 
 
            with suspicion and is closely scrutinized.  In re Marriage 
 
            of Grother, 242 N.W.2d 1 (Iowa 1976).  The burden of proof 
 
            is on the party claiming the existence of such a marriage to 
 
            show all elements by a preponderance of clear, consistent 
 
            and convincing evidence.  In re Estate of Fisher, 176 N.W.2d 
 
            801 (Iowa 1970).
 
            
 
                 In the present case, Kristi Throgmartin has established 
 
            by clear, consistent and convincing evidence that at the 
 
            time of Ricky Throgmartin's death, he and she had 
 
            continuously cohabited since 1986, that from at least July, 
 
            1987 they both intended and agreed to be husband and wife in 
 
            praesenti and that both participated in a general and public 
 
            holding out of themselves as being married.
 
            
 
                 There is contrary evidence in the record, primarily 
 
            being the testimony of Max Wagaman and the fact that Ricky 
 
            and Kristi did not execute legal documents indicative of a 
 
            marital relationship.  However, Mr. Wagaman was merely a 
 
            casual acquaintance and the overwhelming weight of 
 
            eyewitness testimony from friends, family and coworkers 
 
            establishes that Ricky and Kristi were married, intended to 
 
            be married and held themselves out to the public as such.  
 
            The lack of a "paper trail" is attributable to Ricky and 
 
            Kristi's youthful lack of sophistication.  Accordingly, 
 
            death benefits shall be awarded Kristi pursuant to Iowa Code 
 
            section 85.43.
 
            
 
                 Kristi also seeks the imposition of a penalty pursuant 
 
            to Iowa Code section 86.13.  The unnumbered fourth paragraph 
 
            of that section requires the award of benefits as a penalty 
 
            where a delay in commencement of benefits occurs "without 
 
            reasonable or probable cause or excuse."  Where a claim is 
 
            "fairly debatable," defendants are entitled to debate it, 
 
            whether the debate concerns a matter of fact or law.  To 
 
            show a claim for bad faith (in the tort context), a 
 
            plaintiff must show the absence of a reasonable basis for 
 
            denying benefits of a policy and defendants' knowledge or 
 
            reckless disregard of the lack of a reasonable basis for 
 
            denying the claim.  Dolan v. Aid Ins. Co., 431 N.W.2d 790 
 
            (Iowa 1989).  This analysis has been adopted for evaluating 
 
            86.13 penalty claims.  Dodd v. Oscar Mayer Foods Corp., file 
 
            number 724378 (Penalty Decn., April 27, 1989).
 
            
 
                 In the case at bar, defendants had a reasonable basis 
 
            for denying the claim, one which is "fairly debatable."  The 
 
            fact that the parties planned a ceremonial marriage which 
 
            had not come to pass at the time of Ricky's death coupled 
 
            with the utter lack of documentary evidence of a common law 
 
            marriage shows that this claim was fairly debatable.  No 
 
            penalty benefits shall be awarded.
 
            
 
                                      order
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant Kristi Throgmartin 
 
            death benefits of two hundred sixty-five and 16/100 dollars 
 
            ($265.16) per week commencing May 26, 1988 and continuing 
 
            until terminated pursuant to Iowa Code section 85.31(1)(a).
 
            
 
                 Defendants shall pay to the Treasurer of the State of 
 
            Iowa for the benefit of the Second Injury Fund the sum of 
 
            four thousand and 00/100 dollars ($4,000.00) pursuant to 
 
            Iowa Code section 85.65.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Mr. Lance A. Grotewold
 
            Attorneys at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 West Second Street
 
            P.O. Box 716
 
            Ottumwa, Iowa  52501
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1901; 4000.2
 
                           Filed December 13, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KRISTI THROGMARTIN, (formerly :
 
            BRAINARD-THROGMARTIN), and    :
 
            RICKY THROGMARTIN, Deceased,  :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 885869
 
            vs.                           :
 
                                          :            D E A T H
 
            PRECISION PULLEY, INC.,       :
 
                                          :         B E N E F I T S
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1901; 4000.2
 
            Death benefits awarded to spouse who established common law 
 
            marriage (continuous cohabitation, present intent and 
 
            agreement, public holding out) through testimony of friends, 
 
            family, coworkers and a preacher.
 
            However, no penalty benefits were awarded under the "fairly 
 
            debatable" test adopted in Dodd.  No legal documents showed 
 
            marital relationship (the principals were young and 
 
            inexperienced and believed they could not) and a formal 
 
            marriage was scheduled at the time of death (primarily for 
 
            the benefit of the respective families).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM M BROWN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 886001 & 991561
 
            HYMAN FREIGHTWAYS, INC.,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            Brown against his employer based upon injuries of May 13, 
 
            1988 and May 21, 1990.  At the commencement of the hearing 
 
            it was stipulated that the 1990 injury was a temporary 
 
            aggravation of the 1988 injury.  It was also stipulated that 
 
            the only claim being made is for permanent partial 
 
            disability compensation is attributable to the May 13, 1988 
 
            injury.  There are no unresolved issues in file number 
 
            991561. 
 
            
 
                 The case was heard at Des Moines, Iowa, on September 8, 
 
            1993.  The record consists of testimony from witnesses, 
 
            claimant's exhibits 1 through 13 and defendants' exhibits A 
 
            through J.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 William M. Brown, Jr., is a 38-year-old man who 
 
            graduated from high school in 1973.  For approximately two 
 
            years following high school he performed construction, 
 
            publishing and warehouse work.  He then obtained a job 
 
            driving a truck for American Freight.  When American Freight 
 
            ceased operations he obtained work with Hyman Freightways, 
 
            Inc.
 
            
 
                 William is an over-the-road driver.  Hyman Freightways 
 
            is a union trucking company and pays union scale wages.  In 
 
            1992 William earned approximately $50,000.  It is more than 
 
            he was earning at the time of injury due to pay increases 
 
            negotiated by the union.  He will likely earn even more in 
 
            1993.  William is an over-the-road driver.  His work 
 
            requires extended periods of driving a semi-tractor.  It 
 
            subjects him to a considerable amount of bouncing and 
 
            jostling about which varies according to the type of tractor 
 
            he is driving and the surface of the road on which he is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            driving.  
 
            
 
                 On May 13, 1988, William was seriously injured when his 
 
            truck left the road near its terminal.  His most significant 
 
            injuries included fractures in his cervical spine and jaw.  
 
            He also suffered severe lacerations which required several 
 
            surgeries by a plastic surgeon.  He has undergone cervical 
 
            fusion surgery which was performed in July 1990.  
 
            
 
                 Despite the seriousness of his injuries, William has 
 
            been released to return to work without any restrictions on 
 
            his activities being imposed by any physician.  He has 
 
            received ratings of permanent impairment ranging from 7 
 
            percent from David J. Boarini, M.D., his treating 
 
            neurosurgeon (claimant's exhibit 1, page 18), a rating of 21 
 
            percent from Thomas W. Bower, L.P.T. (ex. 14, p. 33) and a 
 
            rating of 24 1/2 percent from Neurologist Richard F. Neiman, 
 
            M.D. (cl.ex. 3, pp. 2, 3, 5).  While none of the physicians 
 
            have imposed activity restrictions, the records from 
 
            Therapist Bower show that William has a considerable deficit 
 
            in his use of his left arm and restricted motion in his neck 
 
            (ex. 13, deposition ex. 2).  The record does not show 
 
            William's left shoulder to have been worsened by this 
 
            injury.
 
            
 
                 William continued to work for Hyman Freightways, Inc., 
 
            as an over-the-road driver.  He performs all of the 
 
            requirements of his job to the satisfaction of his employer.  
 
            His employment appears relatively stable and secure.  There 
 
            is, however, no guarantee that the employer will continue 
 
            its operations indefinitely.  It is well established by 
 
            testimony from Wesley McDaniel; Katherine Bennett; Jeffrey 
 
            Raymond; and even from defendants' vocational consultant, 
 
            Jack Reynolds; that if William were to lose his job with 
 
            Hyman Freightways, Inc., it would be very unlikely that he 
 
            would be able to obtain another union truck driving job 
 
            which would provide him the same level of earnings as he 
 
            currently enjoys.  As indicated by Reynolds, claimant is 
 
            presently enjoying the highest possible level of his 
 
            vocational potential.  Claimant's history of injury would 
 
            likely make it difficult for him to be re-employed as a 
 
            truck driver.  There is some speculation that the Americans 
 
            with Disabilities Act would provide some assistance in 
 
            overcoming long-standing industry practices of not hiring 
 
            individuals who have previously experienced spinal injuries 
 
            but the legislation is so new that its ultimate impact 
 
            cannot be accurately predicted.  It can reasonably be 
 
            predicted that there will be a significant number of 
 
            companies which will attempt to avoid the intent of the act, 
 
            either through legitimate loopholes or through thinly 
 
            disguised outright violations.  
 
            
 
                 It cannot be known whether Hyman Freightways will 
 
            continue to operate for a day, a year, a decade, or a 
 
            century.  To attempt any specific prediction based upon the 
 
            record in this case would be pure speculation.  On the other 
 
            hand, it is well recognized that in today's society most 
 
            individuals change employers and jobs several times 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            throughout their working life.  In view of such, it is fair 
 
            to state that it is probable that William M. Brown will not 
 
            continue working for Hyman Freightways as a truck driver for 
 
            the remainder of his working life.  
 
            
 
                 As indicated by Jack Reynolds, William's current level 
 
            of earnings is the top of his vocational potential.  In view 
 
            of the shortage of union truck driver jobs as described by 
 
            McDaniels, William would have difficulty finding another 
 
            union truck driver job even if he were uninjured.  It does 
 
            not appear that William's injuries will play any significant 
 
            factor in determining how long he remains employed as a 
 
            driver for Hyman Freightways.  If his employment with Hyman 
 
            Freightways, Inc. were to end, it is quite predictable that 
 
            he would experience a 50 percent, or perhaps even greater, 
 
            reduction in actual earnings.  While the physicians have not 
 
            imposed any specific activity restrictions upon William, the 
 
            testing done by Bower clearly shows that he would be 
 
            unsuited for heavy manual labor type of work.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 In this case there is a considerable disparity between 
 
            two of the common indicators.  Claimant's physical 
 
            impairment, which is considerable, would tend to indicate a 
 
            considerable loss of earning capacity, yet his actual 
 
            earnings tend to indicate that there is not any loss of 
 
            earning capacity.  When all of the material factors of 
 
            industrial disability are considered, it is found that the 
 
            correct analysis lies between those two extremes.  It is 
 
            determined that William M. Brown has a 15 percent permanent 
 
            partial disability as a result of the May 13, 1988 injury.  
 
            This entitles him to receive 75 weeks of compensation for 
 
            permanent partial disability.  The stipulation by the 
 
            parties does not show the amount of permanent partial 
 
            disability compensation which has been paid for this injury 
 
            prior to hearing.  Defendants have not filed claim activity 
 
            reports which appear in the agency file.  The amount of 
 
            credit for voluntary payments can therefore not be 
 
            determined with precision.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED that in file number 886001 
 
            defendants pay William M. Brown seventy-five (75) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of four hundred fifty-eight and 18/100 
 
            dollars ($458.18) per week payable commencing January 23, 
 
            1989.  Defendants shall receive credit for the permanent 
 
            partial disability compensation previously paid on account 
 
            of this injury.  
 
            
 
                 It is further ordered that no further recovery is 
 
            payable in file number 991461.
 
            
 
                 It is further ordered that defendant file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendant pursuant to rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave STE 111
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Cecil Goettsch
 
            Attorney at Law
 
            801 Grand Ave STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                          51803
 
                                          Filed December 14, 1993
 
                                          Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM M BROWN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                        File Nos. 886001 & 991561
 
            HYMAN FREIGHTWAYS, INC., 
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                            D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            Over-the-road truck driver, whose earnings had increased 
 
            since injury due to contract changes, working without 
 
            restrictions, but with physical defects and permanent 
 
            impairment from cervical fusion, awarded 15 percent 
 
            permanent partial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARIE TAYLOR,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 886089
 
                                          :
 
            UNIVERSITY OF IOWA,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Marie 
 
            Taylor against the University of Iowa and the State of Iowa 
 
            based upon an injury that occurred on or about May 20, 1988.  
 
            Claimant seeks compensation for permanent disability in 
 
            connection with that injury.
 
            
 
                 The case was heard at Cedar Rapids, Iowa, on December 
 
            19, 1991.  The evidence consists of testimony from Marie 
 
            Taylor, claimant's exhibits 1 through 7 and defendants' 
 
            exhibit A.  With regard to the evidence, it should be noted 
 
            that what has been marked as joint exhibit 3h was submitted 
 
            by the employer subsequent to hearing in order to complete 
 
            the records of the University of Iowa Hospitals and Clinics.  
 
            At the time of hearing, what was submitted by the claimant 
 
            was believed to be complete, but apparently it was 
 
            thereafter subsequently determined to have some omissions.  
 
            Claimant's exhibit 7 is the claimant's deposition.  It is 
 
            received into evidence pursuant to Code section 86.18(2).  
 
            What was referred to as defendants' exhibit A at the time of 
 
            hearing was identified by defense counsel as joint exhibit 
 
            3h when it was submitted after the hearing and what was 
 
            referred to as defendants' exhibit A at the commencement of 
 
            the hearing is actually in the record as exhibit 3h.  There 
 
            is no defendants' exhibit A.  The ruling which received 
 
            defendants' exhibit A into evidence is modified to reflect 
 
            the receipt of exhibit 3h.
 
            
 
                 Claimant appeared for hearing approximately two hours 
 
            late.  Her testimony was taken as an offer of proof with a 
 
            determination to be made subsequently regarding whether or 
 
            not it would be received.  Employer has subsequently made no 
 
            objection to the claimant's testimony being included as part 
 
            of the record.  It is therefore considered and included in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the record of this case.  Defense counsel's request that, 
 
            regardless of the outcome of the case, the claimant be 
 
            charged with $50.00 for the court reporter fees while 
 
            awaiting her arrival at the hearing is well founded and is 
 
            granted.
 
            
 
                                 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.
 
            
 
                 Marie Taylor is a 50-year-old woman who lives at 
 
            Oxford, Iowa.  She was most recently employed as a 
 
            housekeeper at the University of Iowa Hospitals.  Her 
 
            functions consisted of dusting, floor waxing, vacuuming and 
 
            making beds.  At times, she had to lift furniture and move 
 
            beds.  The work involved lifting in excess of 50 pounds on 
 
            occasion.  Her work likewise involved pushing a work cart 
 
            which was loaded with cleaning supplies.  She performed a 
 
            great deal of bending.  She climbed stepladders.  Marie was 
 
            responsible for turning mattresses on patient beds in the 
 
            hospital.
 
            
 
                 Marie completed the tenth grade in school and 
 
            subsequently obtained a GED.  Her work history includes a 
 
            considerable amount of time as a homemaker.  At age 26, she 
 
            reentered the work force.  She has performed waitress and 
 
            kitchen work in the restaurant industry.  For nine and 
 
            one-half years, she worked as a baker and wrapper at the 
 
            Hy-Vee stores in Coralville.  In 1985, she commenced her job 
 
            with the University of Iowa housekeeping department.
 
            
 
                 Marie's medical history is remarkable for a 1986 knee 
 
            injury which ultimately led to arthroscopic surgery in May 
 
            of 1987 wherein a small amount of the medial meniscal 
 
            cartilage was removed.  Following that procedure, her pain 
 
            complaints were greatly reduced but not completely resolved 
 
            (exhibit 3c, pages 1-18).  Prior to May 20, 1988, there were 
 
            no indications that Marie had any problems with her low 
 
            back.
 
            
 
                 On May 20, 1988, Marie was on a stepladder dusting when 
 
            she fell.  The accident report, joint exhibit 4, makes 
 
            reference to claimant's right upper arm, left wrist, left 
 
            leg and right side of body being injured.  Her low back is 
 
            not mentioned.  Marie continued to work on the day of the 
 
            injury, but on the following day, she sought medical 
 
            treatment.  She was taken off work from May 21 through June 
 
            12, 1988, and was then released to return to work without 
 
            restrictions effective June 13, 1988 (exhibit 3h, page 19; 
 
            exhibit 4, pages 4-8).  Her condition was diagnosed as a 
 
            musculoskeletal strain and no permanent defect was 
 
            anticipated (exhibit 3h, page 1).  An earlier diagnosis had 
 
            been simply lumbar strain (exhibit 3h, page 2).  A progress 
 
            note dated January 5, 1989, indicates that Marie had resumed 
 
            full-time work and resumed her favorite recreational 
 
            activity of dancing.  It relates that she had some bad days 
 
            but that they resolved quickly (exhibit 3c, page 19).  
 
            Exhibit 3a, page 2, shows that Marie missed little time from 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            work during the third quarter of 1988.  She missed 
 
            considerable time during the fourth quarter of 1988 but 
 
            little time again during the first and third quarters of 
 
            1989 (exhibit 3a, page 2).
 
            
 
                 Claimant was seen in the emergency room on August 2, 
 
            1989, with complaints of low back pain as a result of a 
 
            reinjury that occurred on July 30, 1989.  The history 
 
            indicates that she awoke with right low back pain and right 
 
            hip and lateral thigh pain following two days of frequent 
 
            flipping of mattresses while cleaning hospital beds (exhibit 
 
            3c, pages 21 and 22).  She was placed at bed rest.  When 
 
            seen on August 8, 1989, her symptoms had completely resolved 
 
            and she was released to return to work without restrictions.  
 
            The physician assessed the incident as a reexacerbation of 
 
            her previous low back condition (exhibit 3c, pages 21 and 
 
            22; exhibit 4, pages 14 and 17).
 
            
 
                 Marie continued to work without notable absence until 
 
            approximately one year later, namely August 28, 1990.  It 
 
            was on August 28, 1990, when Marie reported having injured 
 
            herself on August 17, 1990, while lifting a mattress 
 
            (exhibit 4, page 18; exhibit 3c, page 24).  It is noted 
 
            that, on the accident report, the method of injury was 
 
            listed as pushing the cart.  Marie was off work from August 
 
            22 through September 11, 1990 (exhibit 4, pages 19, 21, 22, 
 
            23 and 25; exhibit 3, page 25).  Marie was then again off 
 
            work September 25 through October 3, 1990 (exhibit 4, pages 
 
            27, 28 and 33; exhibit 3c, pages 26 and 27).  She was again 
 
            off work October 17 and 18 (exhibit 4, pages 31 and 32).
 
            
 
                 Thereafter, Marie missed additional time from work for 
 
            her back complaints.  She was again seen on November 7, 
 
            1990, for a functional capacity evaluation.  X-rays showed 
 
            moderate L5-S1 degeneration with some retrolisthesis of L5 
 
            on S1 in flexion and extension.  Some instability at L4-5 
 
            and slightly decreased disc space at L4-5 and L5-S1 were 
 
            likewise identified.  The assessment made was that claimant 
 
            had chronic low back pain possibly due to degenerative disc 
 
            disease.  She was assigned a three percent permanent 
 
            impairment rating of the body as a whole (exhibit 3c, pages 
 
            28 and 29).
 
            
 
                 Claimant was seen on January 24, 1991, with complaints 
 
            of a work-related exacerbation of back pain which had 
 
            occurred on December 21, 1990.  She was authorized to return 
 
            to work on January 25, 1991 (exhibit 3c, page 32).
 
            
 
                 Marie eventually entered a rehabilitation program on 
 
            April 5, 1991.  She was released from the program to return 
 
            to work effective April 6, 1991.  She worked approximately 
 
            two weeks and then took a leave of absence starting April 
 
            22, 1991 (exhibit 3c, page 34).  With regard to other 
 
            information of times off work, the return to work on June 7, 
 
            1988, is exhibit 3d, page 1; the time off starting September 
 
            25, 1990, is exhibit 3d, page 3; the two days starting 
 
            October 17, 1990, is exhibit 3d, page 4; and, the day of 
 
            November 7, 1990, is exhibit 3d, page 5.
 
            
 
                 A vocational rehabilitation assessment was performed on 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            November 7, 1990.  It was found that claimant had a maximum 
 
            lifting ability of less than 15 pounds and that her 
 
            repetitive lifting ability was only 8 pounds.  The notes 
 
            indicate that she exhibited severe pain behavior.  She 
 
            likewise was found to have a low level of fitness.  It was 
 
            recommended that she lose 20 or 30 pounds.  Vocationally, it 
 
            was recommended that she search for other work and contact 
 
            the Department of Vocational Rehabilitation if assistance 
 
            was needed.  It was recommended that she engage in a 
 
            two-week rehabilitation program.  In summary, it was noted 
 
            that she had sustained a work injury on 8-88 [sic].  The 
 
            initial intake showed three injuries, namely May of 1988, 
 
            August of 1988 [sic] and August of 1990.  The x-rays were 
 
            interpreted as showing moderate degenerative joint disease 
 
            at the L5-S1 level (exhibit 3d, pages 8-19).
 
            
 
                 Marie did participate in the two-week rehabilitation 
 
            program as recommended.  During her participation, her 
 
            functional capacity level decreased (exhibit 3d, page 25).  
 
            She was released to restricted duty effective April 4, 1991.  
 
            The restriction was that she have assistance in turning 
 
            mattresses, moving large furniture and pushing beds (exhibit 
 
            3d, page 23).  The employer declined to allow claimant to 
 
            work with those restrictions and upon consultation with her 
 
            physician, a release to full duty was obtained effective 
 
            April 7, 1991 (exhibit 3d, page 27).  Despite the April 7, 
 
            1991, release to full duty, a report was issued on April 11, 
 
            1991, in which restrictions of 16 pounds for maximum lifting 
 
            and 8 pounds for repetitive lifting were recommended.  A 
 
            three percent permanent impairment of the whole body was 
 
            assigned.  It was further reported that the healing ended 
 
            with claimant's return to work on April 8, 1991.  It was 
 
            reported that she could continue with housekeeping until she 
 
            was able to find another job which provided less bending, 
 
            twisting and lifting (exhibit 3d, pages 28-30).  In a report 
 
            dated May 1, 1991, it was acknowledged that the housekeeping 
 
            job was not within claimant's activity restrictions and that 
 
            she was aggressively seeking some other job (exhibit 3d, 
 
            page 32).
 
            
 
                 Subsequent follow-up exhibits showed that claimant's 
 
            functional capacity had increased markedly by May 1, 1991 
 
            (exhibit 3d, pages 33 and 34).  On July 24, further marked 
 
            improvement was noted (exhibit 3d, pages 35-37).  On October 
 
            2, 1991, however, marked decreases in her functional 
 
            capacity were reported (exhibit 3d, pages 39-41).  It was 
 
            noted, however, that she was still considered to be 100 
 
            percent rehabilitable to full-time gainful employment.
 
            
 
                 Claimant was evaluated by Robert Joseph Chesser, M.D.  
 
            Dr. Chesser found claimant to have a seven percent permanent 
 
            impairment of the body as a whole of which one percent was 
 
            due to a restricted range of motion and six percent was due 
 
            to degeneration in her spine (exhibit 1, page 9).  Dr. 
 
            Chesser causally related all the disability to the May 1988 
 
            injury.  He explained that the degenerative changes were not 
 
            caused by that injury, but that the injury marked the start 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of the symptoms (exhibit 1, pages 9 and 10).  He related 
 
            that degenerative changes do not support activity 
 
            restrictions if they are not symptomatic (exhibit 1, pages 
 
            13 and 14).  Dr. Chesser did not disagree with the activity 
 
            restrictions recommended by the University of Iowa 
 
            Hospitals, but he indicated that he would have expected 
 
            claimant to have been functioning at a higher level (exhibit 
 
            1, pages 10 and 11).  Dr. Chesser agreed that claimant's 
 
            symptoms could develop simply as a result of aging in view 
 
            of the degenerative changes which he observed (exhibit 1, 
 
            page 11).  He indicated that weight loss might improve her 
 
            symptoms (exhibit 1, pages 12, 16 and 18).  Dr. Chesser 
 
            stated that claimant's degenerative changes will gradually 
 
            worsen but that her symptoms were not likely to worsen.  He 
 
            stated that the work injury would not likely cause 
 
            additional disability in claimant's future (exhibit 1, pages 
 
            14 and 15).  Dr. Chesser, in his report dated August 29, 
 
            1991, causally connected the claimant's symptoms to the May 
 
            1988 injury (deposition exhibit 2 to exhibit 1).
 
            
 
                 As indicated by Dr. Chesser, this is a case in which 
 
            the claimant's subjective symptoms seem to be somewhat 
 
            greater than what the objective medical findings would 
 
            normally be expected to produce.  The same situation 
 
            appeared true with regard to her 1986 knee injury.  There is 
 
            not a single medical practitioner in the record of this case 
 
            who has stated, however, that her symptoms are in any manner 
 
            fabricated.  Based upon claimant's demeanor as she appeared 
 
            at hearing, it would be fair to state that her demeanor was 
 
            not that of a stoic individual.  Nevertheless, she did fall, 
 
            miss time from work and has been given a rating of permanent 
 
            impairment as well as quite severe activity restrictions 
 
            from the Spine Clinic at the University of Iowa Hospitals.  
 
            The only other evaluation in the record comes from Dr. 
 
            Chesser who does not strongly dispute the activity 
 
            restrictions and offers a higher permanent impairment 
 
            rating.
 
            
 
                 This is a case in which the claimant has degenerative 
 
            disc disease.  It is a condition which, as stated by Dr. 
 
            Chesser, likely preexisted the 1988 injury.  It is a 
 
            condition which, even in the absence of the 1988 injury, 
 
            would be progressive.  It is particularly noteworthy that 
 
            the claimant worked for approximately a year following the 
 
            1988 injury until she sought any further medical treatment 
 
            for her back condition.  It is likewise noted that it was 
 
            initially anticipated that no permanent disability or 
 
            impairment would result from the injury.  Subsequent events 
 
            in the record of this case, namely those from on or about 
 
            July 30, 1989, and August 17, 1990, do not appear to have 
 
            been significant traumatic events.  They are more in the 
 
            nature of manifestations of the disability or weakness 
 
            produced by the May 1988 injury.  They are aggravations of 
 
            the condition created by the May 1988 injury.  Were it not 
 
            for the permanent weakness and susceptibility to injury that 
 
            was caused by the May 1988 injury, the subsequent injuries 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            for which claimant missed work would not have been likely to 
 
            occur.  The May 1988 injury was therefore a substantial 
 
            factor in producing the subsequent periods of temporary 
 
            disability which are shown in the record of this case.  
 
            Likewise, the preexisting degenerative condition and 
 
            subsequent aggravations were also substantial factors.  The 
 
            most substantial factor, however, was the original May 1988 
 
            injury.
 
            
 
                 The assessment of this case as made by the University 
 
            of Iowa Spine Diagnostic and Treatment Center is found to be 
 
            correct as is the assessment made by Dr. Chesser.  There is 
 
            no irreconcilable, substantial difference in the 
 
            assessments.  A permanent impairment rating of five percent 
 
            is found to be appropriate.
 
            
 
                 In the record, it is noted that the claimant is 
 
            considered to be rehabilitable.  That finding is likewise 
 
            found to be correct.  Marie has not made a bona fide effort 
 
            to seek other employment.  It is certainly advisable for her 
 
            to stay within the University of Iowa network if possible, 
 
            but the Iowa City, Iowa, area has a relatively healthy labor 
 
            market.  Marie has not engaged in the activities that an 
 
            individual sincerely seeking work normally performs.  She 
 
            has not made a concentrated work search.  Nevertheless, her 
 
            employer of more than five years felt that her impairment, 
 
            activity restrictions and disability were sufficiently 
 
            severe that it had no place for her in its quite sizable 
 
            work force.  Since the employer is well acquainted with 
 
            Marie's injury, capabilities and limitations, its failure to 
 
            place her is strong evidence of a high degree of disability.  
 
            Claimant's degree of disability is therefore determined to 
 
            be substantial.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 20, 
 
            1988, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Refusal to reemploy is strong evidence of lack of 
 
            employability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980); Sunbeam Corp. v. Bates, 271 Ark. 385, 
 
            609 S.W.2d 102 (App. 1980); Army & Air Force Exch. Serv. v. 
 
            Neuman, 278 F. Supp. 865 (W. D. La. 1967).
 
            
 
                 Marie Taylor, with her education and work history, is 
 
            limited from her previous employments by the activity 
 
            restrictions which have been imposed upon her.  She does 
 
            not, however, appear to be at significant risk for further 
 
            injury.  The diagnostic studies have not found any 
 
            objectively identifiable anatomical injury which resulted 
 
            from the fall.  The only abnormality shown is her 
 
            degenerative condition.  Her subjective complaints seem 
 
            somewhat large in comparison to the objective diagnostic 
 
            studies.  It is particularly significant to note that her 
 
            physicians authorized her to continue to perform the 
 
            housekeeping job and indicated that it would not injure her 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            further.  It was her own decision to cease that job.  
 
            Nevertheless, the major employer with many different 
 
            positions in its work force has not found other work for 
 
            her.  It would not be expected that any other employer would 
 
            have as much incentive to find a suitable position for her 
 
            as would the employer in whose employ she was injured.  The 
 
            lack of reemployment is indeed strong evidence of a very 
 
            significant level of disability.  When all the pertinent 
 
            factors of industrial disability are considered, it is 
 
            determined that Marie Taylor has a 25 percent permanent 
 
            partial disability as a result of the May 20, 1988, injury.
 
            
 
                 It is further determined that the subsequent injuries 
 
            in August of 1989 and in August of 1990 were all in fact the 
 
            same injury.  The permanent partial disability compensation 
 
            paid to her under either of those two incidents should be 
 
            credited to the amount awarded in this decision.  It is 
 
            often difficult to determine whether any particular 
 
            injurious incident is a new injury in the form of an 
 
            aggravation of a preexisting condition, a simple 
 
            manifestation of the disability which was caused by a prior 
 
            injury, or whether it is both.  In a case such as this, it 
 
            is appropriate to determine that the subsequent incidents in 
 
            1989 and 1990 were substantial factors in producing 
 
            temporary aggravations of the preexisting condition.  It 
 
            could be just as correct to treat them as additional 
 
            episodes of healing period associated with the original 
 
            injury.  The permanency, however, is more strongly 
 
            attributable to the original injury.  The fifteen weeks of 
 
            permanent partial disability compensation paid by the 
 
            employer for the flare-up are to be credited toward the 
 
            award in this decision.  Wilson Food Corp. v. Cherry, 315 
 
            N.W.2d 756 (Iowa 1982).  The subsequent events appeared to 
 
            be quite insignificant traumas in comparison to the May 1988 
 
            trauma.  Since additional healing period was not claimed, it 
 
            is not necessary to make a specific determination of the 
 
            healing period entitlement.
 
            
 
                 Compensation for permanent partial disability is 
 
            payable commencing at the end of the healing period.  In 
 
            this case, the claimant's healing period ended with her 
 
            original return to work on June 13, 1988.  It is on that 
 
            date that her permanent partial disability compensation 
 
            entitlement commences.  Payment of permanent partial 
 
            disability is interrupted or suspended for the times 
 
            additional healing period compensation is paid for that 
 
            original injury but not for times when disability benefits 
 
            are paid on account of a subsequent injury.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Marie 
 
            Taylor one hundred twenty-five (125) weeks of compensation 
 
            for permanent partial disability at the stipulated rate of 
 
            one hundred fifty-seven and 41/100 dollars ($157.41) per 
 
            week payable commencing June 13, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants are entitled to 
 
            credit for the fifteen (15) weeks of permanent partial 
 
            disability compensation paid on account of the 1989 injury.
 
            
 
                 IT IS FURTHER ORDERED that all other past due, accrued 
 
            weekly compensation for permanent partial disability shall 
 
            be paid to the claimant in a lump sum together with interest 
 
            pursuant to section 85.30 computed from the date each weekly 
 
            payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer, except for fifty and 00/100 
 
            dollars ($50.00) of court reporter fees which are assessed 
 
            against the claimant pursuant to rule 343 IAC 4.33.  The net 
 
            costs payable to the claimant are therefore seventy-three 
 
            and 35/100 dollars ($73.35).
 
            
 
                 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. Allan Hartsock
 
            Attorney at Law
 
            4th Floor, Rock Island Bank Bldg.
 
            P.O. Box 4298
 
            Rock Island, Illinois  61204-4298
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1402.40; 1703
 
                                                 Filed May 18, 1993
 
                                                 BYRON K. ORTON 
 
                           
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MARIE TAYLOR,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 886089
 
            UNIVERSITY OF IOWA, 
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            5-1402.40
 
            Five percent permanent impairment due to back injury in the 
 
            nature of a strain which resulted in loss of job resulted in 
 
            25 percent permanent partial disability award for 
 
            50-year-old claimant.
 
            
 
            1703
 
            There was a dispute regarding whether subsequent flare-ups 
 
            were new injuries or simply manifestations of the original 
 
            injury.  They were found to not be primarily manifestations 
 
            of the original injury.  Permanent partial disability paid 
 
            as the result of one of the flare-ups was credited towards 
 
            the amount awarded for the original injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40; 1703
 
                                               Filed February 25, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARIE TAYLOR,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 886089
 
                                          :
 
            UNIVERSITY OF IOWA,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Five percent permanent impairment due to back injury in the 
 
            nature of a strain which resulted in loss of job resulted in 
 
            25 percent permanent partial disability award for 
 
            50-year-old claimant.
 
            
 
            1703
 
            There was a dispute regarding whether subsequent flare-ups 
 
            were new injuries or simply manifestations of the original 
 
            injury.  They were found to not be primarily manifestations 
 
            of the original injury.  Permanent partial disability paid 
 
            as the result of one of the flare-ups was credited towards 
 
            the amount awarded for the original injury.