Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BILL BURKMIRE, 
 
                      
 
                 Claimant, 
 
                                              File Nos. 886779
 
            vs.                                  967334 974055
 
                      
 
            NATIONAL BY-PRODUCTS, INC.,   
 
                                                  A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant medical care for his right knee and 11 percent 
 
            permanent partial disability benefits relative to his left 
 
            leg.  
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing of November 1, 1991; and of joint 
 
            exhibits A through F.  Both parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the issues on appeal as:
 
            
 
                 1.  Whether the deputy erred in awarding medical 
 
            benefits for future medical care for the right knee; 
 
            
 
                 2.  Whether claimant sustained an injury to his left 
 
            knee arising out of and in the course of his employment; and
 
            
 
                 3.  Whether the deputy erred in awarding claimant 
 
            permanent partial disability benefits for an injury to the 
 
            left knee.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 Claimant was 43 years old at time of hearing.  Claimant 
 
            had begun work for defendant employer on August 25, 1978, as 
 
            a maintenance worker who maintained boilers, rebuilt 
 
            transmissions, wired high voltage motors, welded steam 
 
            fittings and ran machinery.  In the course of an average 
 
            work day, claimant might kneel on the floor, lift 50 to 200 
 
            pounds, climb stairs or ladders as well as perform other 
 
            functions.  Claimant is 5 feet 10 inches tall and weighed 
 
            between 240 and 245 pounds at time of hearing.  He weighed 
 
            257 pounds in 1988.  
 
            
 
                 Claimant had a work injury to his right knee on June 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            17, 1987.  At that time he hurt his right knee in the front 
 
            below the kneecap.  Scott Neff, D.O., an orthopaedic 
 
            surgeon, treated claimant conservatively and diagnosed 
 
            tibial tubercle fracture of the knee secondary to old 
 
            Osgood-Schlatter's disease.  Dr. Neff returned claimant to 
 
            work without restrictions in 1987.  Claimant underwent no 
 
            further medical treatment for the right knee until 
 
            subsequent to May 28, 1988.
 
            
 
                 On May 28, 1988, claimant, at work, stepped into a 
 
            drain hole, fell and twisted his right knee.  He experienced 
 
            pain inside his right knee at the knee joint.  He returned 
 
            to Dr. Neff for treatment on June 8, 1988.  Dr. Neff, in 
 
            medical note of that date, stated that claimant's pain was 
 
            not in the area of the loose piece of bone at the tibial 
 
            tubercle but was at the medial joint line.  A note, of 
 
            apparently late June 1988, states that claimant's symptoms 
 
            are not in the posterior medial joint line but are at the 
 
            patellar insertion on the tibial tubercle where claimant 
 
            "has a large piece of bone" that needs to be removed.  Dr. 
 
            Neff opined he could not justify a menisectomy at that time 
 
            since claimant's symptoms were not consistent with a 
 
            meniscus tear or with medial jointline tenderness.  
 
            
 
                 On May 5, 1988, Dr. Neff performed a right knee 
 
            arthrotomy with excision of Osgood-Schlatter's ossicle, that 
 
            is, with removal of two bone chips in the right knee.  On 
 
            August 3, 1988, Dr. Neff recorded a patient history of 
 
            claimant experiencing pain at the medial joint line with 
 
            immediate swelling after popping the inside of the right 
 
            knee while walking along an incline at work.  The knee area 
 
            was not infected and Dr. Neff opined that claimant may have 
 
            a degenerative cartilage tear in the medial aspect of the 
 
            knee.  Dr. Neff described claimant as a "heavyset (sic) [,] 
 
            hard-working" gentleman who was certainly prone to 
 
            degenerative meniscal disease of the knee.  Dr. Neff 
 
            released claimant to return to normal activities but for 
 
            climbing ladders on August 15, 1988.  
 
            
 
                 On October 24, 1988, Dr. Neff stated claimant had a 
 
            Baker's cyst on the posterior [right] knee.  Neff indicated 
 
            that a Baker's cyst is always associated with cartilage 
 
            disease in the knee.  Neff further opined that claimant was 
 
            "setup" for medial meniscal disease given claimant's age, 
 
            weight, muscle size and occupation.  
 
            
 
                 On November 11, 1988, Dr. Neff diagnosed claimant's 
 
            condition as proved medial and lateral meniscus tear with 
 
            intra-articular degenerative changes.  Dr. Neff then stated 
 
            that arthoscopic examination of the right knee was 
 
            warranted, and if degenerative and torn cartilage was found, 
 
            that such should be trimmed and partially removed.  
 
            
 
                 On February 24, 1989, Dr. Neff reported that claimant 
 
            had full right knee range of motion.  Dr. Neff further 
 
            stated that claimant's knee would continue to wear out as 
 
            claimant got older.  He described claimant as a large 
 
            gentleman who does fairly repetitive and heavy work and 
 
            opined that claimant would need knee replacement surgery in 
 
            the future as his knee continued to wear out.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 On May 14, 1989, Dr. Neff reported that claimant had 
 
            excellent range of motion of the right knee with minimal 
 
            crepitus.  
 
            
 
                 Claimant returned to Dr. Neff's office at some point in 
 
            1990 complaining of increasing right knee pain.  His right 
 
            knee range of motion was from eight degrees to 130 degrees.  
 
            The knee was unstable as to varus and valgus stress.  A mild 
 
            Lachman or anterior draw sign was present as was definite 
 
            crepitus and lateral joint line tenderness.  A subsequent 
 
            1990 bone scan revealed significant uptake consistent with 
 
            inflammatory arthritis and degenerative changes in both the 
 
            right and left knee.  Dr. Neff felt arthroscopy was 
 
            warranted to delay total knee replacement surgery.  Dr. Neff 
 
            opined that the bone scan revealed definite osteoarthritis, 
 
            a meniscus tear and increased uptake.  
 
            
 
                 On December 10, 1990, Dr. Neff stated that the majority 
 
            of claimant's symptoms were related to arthritic 
 
            degenerative changes in both knees associated with aging, a 
 
            degenerative predisposition to arthritis, and wear and tear 
 
            changes of normal everyday activity.  He stated, however, 
 
            that if acute meniscal tear or chondral fracture found, then 
 
            claimant's symptoms were partially attributable to his 1988 
 
            work injury.  Dr. Neff further opined that claimant's 
 
            symptoms could be expected to worsen with time given his 
 
            degenerative arthritis in both knees.  He opined that if 
 
            permanent impairment resulted, five percent of the 
 
            impairment would relate directly to the 1988 work injury 
 
            given that claimant's symptoms of cartilage tear or chondral 
 
            fracture or both occurred then.  Dr. Neff, again recommended 
 
            that claimant undergo a diagnostic arthroscopy with joint 
 
            lavage and probable partial medial menisectomy.  Dr. Neff 
 
            reported that given claimant's history, the then recommended 
 
            arthroscopy did not relate to claimant's 1988 work injury.  
 
            
 
                 On May 1, 1991, Dr. Neff stated that the arthroscopy 
 
            surgery recommended related to the degenerative meniscal 
 
            tear claimant had as a result of work activity.  Dr. Neff 
 
            agreed that claimant's degenerative knee changes also 
 
            resulted from genetics, aging, and other body activities.  
 
            On June 12, 1991, Dr. Neff opined that claimant's work and 
 
            activity history were a substantial contributing factor in 
 
            claimant's degenerative knee changes which changes 
 
            eventually produced claimant's degenerative meniscal tearing 
 
            and his arthritic knee changes.  Dr. Neff further stated 
 
            that he believed claimant's changes would be bilateral if 
 
            these resulted totally from aging and genetics.  
 
            
 
                 On October 31, 1988, Dr. Neff and Thomas W. Bower, 
 
            L.P.T., opined that claimant had an 11 percent impairment to 
 
            his right lower extremity under the AMA Guides subsequent to 
 
            his May 1988 work incident.  On May 22, 1988, Mr. Bower and 
 
            Dr. Neff affirmed that opinion and stated that if claimant 
 
            had continuing problems, claimant would need a total knee 
 
            replacement in three to five years which total knee 
 
            replacement would result in a 50 percent impairment of the 
 
            right lower extremity.  Defendants have paid claimant 
 
            permanent partial disability benefits equaling those 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            available for an 11 percent impairment as to the right knee.
 
            
 
                 Camilla Frederick, M.D., opined on October 15, 1990, 
 
            that approximately one month earlier that claimant had 
 
            injured his left knee when he bent in a valgus position 
 
            while crawling across scaffolding.  Patrick M. Sullivan, 
 
            M.D., noted on October 29, 1990, an impression that claimant 
 
            had a left medial meniscal tear after suffering a pop and 
 
            twist in his left knee at work approximately 78 "weeks" ago.  
 
            May 28, 1988 would have been substantially more than 78 
 
            weeks prior to October 29, 1990.  August 23, 1990 would have 
 
            been 68 days prior to October 29, 1990.  Given that and 
 
            given that Dr. Sullivan saw claimant on referral of Dr. 
 
            Frederick and given that Dr. Sullivan's October 29, 1990 
 
            date refers to left knee symptoms, it is found that Dr. 
 
            Sullivan's note refers to claimant's left knee symptoms 
 
            dating from on or about August 23, 1990.  It is also found 
 
            that no separate injury occurred on or about September 17, 
 
            1990. 
 
            
 
                 Dr. Sullivan noted claimant had reduced claimant's work 
 
            capacity because of his work related injury and that 
 
            claimant gave a history of having significant pain and a 
 
            markedly swollen knee whenever claimant worked a full day.  
 
            Claimant complained of pain in the posterior of the left 
 
            knee and of snapping and locking in the knee.  Claimant 
 
            walked with a slight left-sided limp; had a positive median 
 
            McMurray sign; had slight effusion and had full knee range 
 
            of motion.  The previously performed MRI suggested a complex 
 
            tear of the posterior horn of the medial meniscus [on the 
 
            left].  On November 2, 1990, Dr. Sullivan performed a left 
 
            partial medial meniscectomy.  
 
            
 
                 Dr. Sullivan last saw claimant on December 5, 1990.  
 
            Claimant then was walking well without crutches; had no 
 
            effusion; and had full range of motion of the knee.  Dr. 
 
            Sullivan released claimant to return to Dr. Frederick's care 
 
            and to see Dr. Sullivan on a PRN basis and to perform 
 
            activities as tolerated.  
 
            
 
                 Dr. Frederick, on December 19, 1990, released claimant 
 
            to light duty work with restrictions on lifting greater than 
 
            20 pounds, on squatting, on climbing and working outside his 
 
            own "pace."  On March 13, 1991, Dr. Frederick returned 
 
            claimant to light duty work with restrictions of no ladder 
 
            climbing and no overtime work.  The record does not indicate 
 
            that those restrictions have been removed.  
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
                 Our first concern is whether the deputy erred in 
 
            awarding medical benefits for future medical care for the 
 
            right knee.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopening 1975).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Defendants argue that claimant is not entitled to 
 
            payment for the arthoscopic surgery Dr. Neff recommends in 
 
            that the recommended surgery is not causally related to the 
 
            May 28, 1988 work injury but rather relates to claimant's 
 
            underlying degenerative arthritis in his knees.  We 
 
            disagree.  While the deputy erred in stating that claimant 
 
            experienced pain inside his knee joint where claimant had 
 
            pain in 1985 when claimant injured his knee in May 1988, the 
 
            record is clear that claimant had complaints of pain in the 
 
            medial jointline when he saw Dr. Neff on June 8, 1988.  
 
            Claimant has had complaints consistent with a medial 
 
            meniscal tear intermittently but consistently from that 
 
            point onward.  The record does not reflect complaints 
 
            consistent with a right medial meniscal tear prior to the 
 
            May 28, 1988 injury.  Dr. Neff's opinions of May and June 
 
            1991 relate his recommendation for the diagnostic 
 
            arthroscopy to the May 1988 work injury.  Additionally, Dr. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Neff's notes are replete with references to claimant's 
 
            occupation being a factor in claimant's being "setup" for 
 
            medial meniscal disease.  While it is true that Dr. Neff 
 
            believes that other factors such as claimant's age, weight, 
 
            and muscle size are also involved, it is also true that the 
 
            specific work incident of May 1988 and claimant's overall 
 
            work duties have been substantial factors in bringing about 
 
            claimant's need for the diagnostic arthroscopy that Dr. Neff 
 
            recommends.  Given such, the deputy correctly concluded that 
 
            claimant should be awarded benefits for future medical care 
 
            associated with claimant's undergoing the diagnostic right 
 
            knee arthroscopy which Dr. Neff recommends.  The deputy also 
 
            correctly concluded that defendants shall provide any 
 
            healing period benefits for which defendants are liable as 
 
            result of such surgery and a period of recovery.  
 
            
 
                 We next consider whether the deputy erred in finding 
 
            claimant sustained an injury to his left knee arising out of 
 
            and in the course of claimant's employment.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The deputy correctly found that claimant sustained an 
 
            injury to his left knee arising out of and in the course of 
 
            his employment on August 23, 1990, when claimant experienced 
 
            left knee complaints upon standing up on a 2 x 12 board.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Claimant's medical history both with Dr. Frederick and Dr. 
 
            Sullivan is consistent with that finding.  Dr. Sullivan's 
 
            October 29, 1990 note clearly reflects Dr. Sullivan's belief 
 
            that a work relationship exists between claimant's then 
 
            present left knee complaints and claimant's incident in 
 
            August 1990.  Further, the record contains no medical 
 
            history suggesting that claimant had left knee complaints 
 
            prior to the August 1990 incident.  Hence, even while it 
 
            appears claimant has bilateral degenerative arthritis of his 
 
            knees, it equally appears that such problems were largely 
 
            asymptomatic on the right until claimant's May 1988 work 
 
            incident and were largely asymptomatic on the left until 
 
            claimant's August 1990 work incident.  Given that finding, 
 
            as to the left knee condition, the August 1990 work incident 
 
            must be considered a material aggravation that resulted in 
 
            disability such that claimant is entitled to recover for any 
 
            resulting disability.  See Nicks v. Davenport Produce Co., 
 
            254 Iowa 130, 115 N.W.2d 812, 815 (1962); Yeager v. 
 
            Firestone Tire and Rubber Co., 253 Iowa 369, 373-74, 112 
 
            N.W.2d 299, 301 (1961).  
 
            
 
                 It is further expressly found that any symptoms 
 
            claimant experienced on September 17, 1990 as to the left 
 
            knee related to claimant's aggravation of his previously 
 
            asymptomatic left knee condition on August 23, 1990 and do 
 
            not constitute a separate and specific left knee injury 
 
            arising out of and in the course of claimant's employment on 
 
            September 17, 1990.  It is further expressly found that 
 
            claimant is entitled to payment of medical costs and medical 
 
            mileage costs as set forth in joint exhibit E as a result of 
 
            the August 1988 material aggravation of his previously a 
 
            asymptomatic left knee condition.
 
            
 
                 We last consider whether the deputy erred in awarding 
 
            claimant permanent partial disability benefits on account of 
 
            the injury and any resulting permanent disability to the 
 
            left knee.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory.  The statute conferring 
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            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.  Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 Section 85.34(2)(o) provides that compensation is 
 
            payable during 220 weeks for loss of the leg.  The final 
 
            unnumbered paragraph of that subsection also provides that 
 
            where an injury has produced a disability less than that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            specifically described in the schedule, compensation is to 
 
            be paid during the lesser number of weeks of disability 
 
            determined, as will not exceed a total amount equal to the 
 
            same percentage proportion of the scheduled maximum 
 
            compensation.  
 
            
 
                 A medical evaluator's finding of impairment references 
 
            to an anatomical or functional abnormality or loss to the 
 
            body as whole or to the rated scheduled member.  
 
            
 
                 Defendants here argue that in the absence of a medical 
 
            evaluator's finding of permanent physical impairment, 
 
            proportioned loss of use under section 85.34(2) is not 
 
            possible.  Theirs is too narrow a reading of the law.  A 
 
            medical evaluator's opinion as to functional impairment 
 
            carries great weight in assessing impairment for permanent 
 
            disabilities.  This is especially so where the case involves 
 
            an alleged scheduled member disability.  The absence of an 
 
            evaluator's impairment rating is not an absolute bar to 
 
            recovery of permanency benefits, however.  The commissioner 
 
            may use other relevant evidence in the record to either 
 
            deviate from the medical evaluator's rating of functional 
 
            loss in assessing scheduled member disability or may use 
 
            other relevant evidence in the record to make an assessment 
 
            of scheduled disability where no evaluator's rating is in 
 
            the record.  Permanent restrictions related to the work 
 
            injury and its sequela as well as information regarding the 
 
            assessment of scheduled loss generally associated with the 
 
            claimant's condition may, in appropriate circumstances, be 
 
            used to determine scheduled member disability benefits due 
 
            claimant.  
 
            
 
                 In this case, claimant has permanent restrictions from 
 
            climbing ladders and from working overtime which 
 
            restrictions relate to his left knee condition.  Claimant 
 
            has undergone partial left medial menisectomy.  This 
 
            surgical procedure is substantially similar to the surgical 
 
            procedure which Dr. Neff has indicated will probably need to 
 
            be performed on claimant's right knee.  Further, the record 
 
            overall suggests that claimant's symptoms in the left knee 
 
            are quite similar to claimant's symptoms in the right knee.  
 
            Dr. Neff and Physical Therapist Thomas Bower have previously 
 
            opined that claimant has an 11 percent permanent partial 
 
            impairment of the right lower extremity on account of the 
 
            right knee condition.  Given the presence of permanent 
 
            restrictions relative to the left knee and given the 
 
            evidence that claimant has an 11 percent permanent partial 
 
            disability to the right knee on account of a substantially 
 
            similar condition, the deputy correctly concluded that 
 
            claimant was entitled to permanent partial disability equal 
 
            to 11 percent of the left leg on account of claimant's work 
 
            related left knee condition.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall provide the surgery claimant's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            authorized treating specialist recommends for claimant's 
 
            right knee as soon as necessary.  Defendants shall pay any 
 
            healing period benefits related to such surgery and recovery 
 
            as section 85.34(1) provides.  
 
            
 
                 Defendants shall pay claimant twenty-four point two 
 
            (24.2) weeks of permanent partial disability benefits at the 
 
            rate of two hundred forty-two and 42/100 dollars ($242.42) 
 
            per week with such benefits to commence on December 12, 
 
            1990.  
 
            
 
                 Defendants shall pay claimant medical costs and medical 
 
            mileage expenses as set forth in joint exhibit E.  
 
            
 
                 Claimant shall take nothing from these proceedings 
 
            regarding claimant's alleged September 17, 1990 left knee 
 
            injury.
 
            
 
                 Defendants shall pay any accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 Defendants, if applicable, shall receive credit against 
 
            the award for any weekly benefits previously paid relative 
 
            to the left knee condition.
 
            
 
                 Defendants shall pay interest on benefits awarded as 
 
            provided in section 85.30.  
 
            
 
                 Defendants shall pay costs of the action and the 
 
            appeal, including the cost of transcription of the 
 
            arbitration hearing.  
 
            
 
                 Defendants shall file claim activity reports pursuant 
 
            to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Tom L. Drew
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, IA  50265
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            418 6th Ave., Suite 500
 
            Des Moines, IA  50309-4148
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       1100; 1108; 2206; 2501; 1803
 
                                       Filed March 30, 1993
 
                                       Byron K. Orton
 
                                       BJO
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BILL BURKMIRE, 
 
                      
 
                 Claimant, 
 
                                                 File Nos. 886779
 
            vs.                                     967334 974055
 
                      
 
            NATIONAL BY-PRODUCTS, INC.,  
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            
 
            1100; 1108; 2206; 2501; 1803
 
            
 
                 Deputy affirmed.  Defendants were required to provide 
 
            arthroscopic surgery for claimant's right knee that 
 
            claimant's authorized treating physician recommended.  While 
 
            claimant apparently had degenerative arthritic condition in 
 
            both knees, the greater weight of evidence demonstrated that 
 
            claimant's work incidents and claimant's occupation overall 
 
            was a substantial contributing factor in the aggravation of 
 
            claimant's right knee condition such that the condition 
 
            became symptomatic.  A similar finding was made relative to 
 
            claimant's left knee condition.  Found that the deputy 
 
            properly concluded claimant had an 11 percent permanent 
 
            partial disability to the left leg even though an 
 
            evaluator's rating of permanent partial impairment to the 
 
            leg was not in the record.  Claimant had permanent 
 
            restrictions against working overtime and against climbing 
 
            ladders as a result of his left knee condition.  Claimant's 
 
            left knee condition was substantially similar to claimant's 
 
            right knee condition for which claimant had received a 
 
            permanent partial impairment rating of 11 percent of the 
 
            lower extremity which defendant had voluntarily paid.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BILL BURKMIRE,                :
 
                                          :
 
                 Claimant,                :     File Nos. 886779
 
                                          :               967334
 
            vs.                           :               974055
 
                                          :
 
            NATIONAL BY-PRODUCTS, 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.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on November 1, 1991, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of three alleged injuries 
 
            occurring on May 28, 1988 (right knee), August 23, 1990 
 
            (left knee), and September 17, 1990 (left knee).  The record 
 
            in the proceeding consists of the testimony of the claimant 
 
            and Joyce Jensen; and joint exhibits A through F.
 
            
 
                 On October 30, 1991, the claimant filed a dismissal 
 
            without prejudice, dismissing the Second Injury Fund of Iowa 
 
            as to files 974055 and 967334.  The Second Injury Fund was 
 
            not involved in the remaining case (886779).  Said motion 
 
            was sustained at the hearing and there were no costs 
 
            assessed as there was no evidence of any additional expense 
 
            on behalf of the Second Injury Fund because of this 
 
            dismissal.
 
            
 
                                      ISSUES
 
            
 
                 As to the May 28, 1988 injury represented by file 
 
            886779, the only issue is whether claimant is entitled to 
 
            have right knee surgery, recommended by Scott B. Neff, D.O., 
 
            and, consequently if allowed, any ensuing healing period or 
 
            any increase in claimant's 11 percent permanent impairment 
 
            which would result in any increase in claimant's permanent 
 
            disability.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            As to the other two injuries, August 23, 1990, file 967334, 
 
            and September 17, 1990, file 974055:
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment on the respective dates;
 
            
 
                 2.  Whether there is any causal connection between 
 
            claimant's alleged disability and the alleged respective 
 
            injury dates;
 
            
 
                 3.  The extent of permanent disability and claimant's 
 
            entitlement to disability benefits.  As to these injuries, 
 
            any disability would be to the left lower extremity and 
 
            benefits would commence on December 12, 1990. and,
 
            
 
                 4.  Claimant's entitlement to 85.27 medical benefits, 
 
            said dispute within this being causal connection and 
 
            authorization.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 46-year-old who began working for 
 
            defendant employer on August 25, 1978, and was hired 
 
            pursuant to a 30 day training period as a maintenance man 
 
            working on boilers, rebuilding transmissions, wiring high 
 
            voltage motors, welding steam fittings, and running 
 
            machinery.  Claimant explained that a normal day involves 
 
            kneeling on the floor lifting 50 to 200 pounds, climbing 
 
            stairs, climbing ladders to various platforms, and other 
 
            functions.  Claimant also testified by way of his deposition 
 
            taken September 9, 1991 (Joint Exhibit B).
 
            
 
                 Claimant related a June 17, 1985 work injury to his 
 
            right knee below the knee cap and no surgery was involved.  
 
            Dr. Neff was the doctor.  Claimant did not need treatment 
 
            between 1985 and 1988 due to this incident.
 
            
 
                 On May 28, 1988, claimant stepped into a drain hole and 
 
            twisted and injured his right knee again.  He fell and 
 
            experienced pain inside his knee joint in the same place he 
 
            did in 1985.  Prior to this incident, claimant was having no 
 
            knee pain.  Claimant said he could hardly work the next day 
 
            and was sent to a doctor who then sent him to Dr. Neff.  
 
            Claimant said his knee had a grinding feel to it and it 
 
            would pop in and out.  He never had that feeling before.
 
            
 
                 As a result of these doctor visits on or about July 5, 
 
            1988, Dr. Neff performed surgery and removed two bone chips 
 
            (Jt. Ex. F, p. 13A).   The surgery was referred to as a 
 
            right knee arthrotomy.  Claimant related that additional 
 
            surgery was set up to take place in 1990 and the insurance 
 
            called the night before and denied surgery.  Claimant 
 
            emphasized that it is this surgery he wants today.  It would 
 
            appear that the particular incident that claimant is 
 
            referring to may have been around September 26, 1990.  Joint 
 
            exhibit F, page 103, reflects a letter from the defendant 
 
            insurance company in which they refer to the fact that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant was scheduled for a microscopic knee surgery on 
 
            September 27 and further possibilities are for a knee 
 
            replacement.  On page 105 of that same exhibit, there is a 
 
            letter dated August 27, 1990, from Dr. Neff wherein he 
 
            suggests possibly more surgery to the claimant's knee (Jt. 
 
            Ex. F, p. 105).  This is obviously in reference to 
 
            claimant's right knee.  Claimant described his current 
 
            symptoms in his right knee as pain and swelling inside the 
 
            knee; unstable; more snapping and cracking; and at times 
 
            inability to get up.
 
            
 
                 Claimant said his left knee began hurting August 23, 
 
            1990, while working on a feed bin.  He said he stood up on a 
 
            board and his left knee popped like a knuckle would pop and 
 
            he had a pain in his left knee.  Claimant told his foreman, 
 
            who said claimant is to be a big boy and keep on working.  
 
            Claimant related his knee began swelling and he could hardly 
 
            climb.  Claimant went home and related the difficulty 
 
            getting an okay to go to the doctor, which okay he finally 
 
            received ten days later.  Patrick M. Sullivan, M.D., had x-
 
            rays and an MRI done on the left knee and surgery was 
 
            performed on November 2, 1990.  Claimant said this helped 
 
            the swelling.  This particular surgery was referred to as 
 
            arthroscopy with meniscectomy (Jt. Ex. D, p. 7).
 
            
 
                 Claimant said each knee has popped at times.  Claimant 
 
            acknowledged the insurance company paid for his time off as 
 
            to his May 28, 1988 injury and the August 23, 1990 injury, 
 
            but only paid permanency as to the May 28, 1988 injury.
 
            
 
                 Claimant said he has no right knee restrictions 
 
            currently and his left knee restriction is "no ladder 
 
            climbing, no overtime."  Claimant is making $9.00 per hour 
 
            now compared to $8.90 on the date of his May 28, 1988 
 
            injury.  Claimant emphasized he never injured his left or 
 
            right knee outside of work.  Claimant indicated he has not 
 
            worked any overtime since his left knee injury (Jt. Ex. B, 
 
            p. 30).  Claimant said he has no functional disability 
 
            rating for the left knee and hasn't asked for one.  The 
 
            doctor opined the 11 percent permanent impairment as to 
 
            claimant's right knee.  Claimant emphasized he never had 
 
            left knee pain prior to August 23, 1990.
 
            
 
                 Claimant related a June 1985 incident in which he broke 
 
            his knee cap, but it appears this completely healed and 
 
            between June 1985 and May 1988 he was a very active person 
 
            and worked without any problems (Jt. Ex. B, pp. 39-41).  
 
            Claimant contends he cannot squat or lift as much as he used 
 
            to.
 
            
 
                 Claimant related his September 17, 1990 injury to his 
 
            left knee occurred when he was walking down an incline or 
 
            slope and his left knee popped.
 
            
 
                 The undersigned notes that he heard the claimant's knee 
 
            crack when claimant stood up after his testimony.
 
            
 
                 Joyce Jensen, the office manager for defendant 
 
            employer, testified that she has worked for defendant 
 
            employer for the last thirteen years and has handled the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            group and workers' compensation insurance.  From her 
 
            testimony, it appears we really don't have an 85.27 issue if 
 
            liability is found.  She indicated claimant's medical bills 
 
            are being paid when submitted under claimant's health 
 
            insurance policy on a 80-20 basis and that workers' 
 
            compensation denied paying the bills.  It further appears 
 
            that if liability is found by the undersigned, then all 
 
            bills will be paid by the workers' compensation carrier or 
 
            defendant corporation.
 
            
 
                 Dr. Neff's notes on November 1988 reflect that he 
 
            thought an arthroscopic examination of claimant's right knee 
 
            was warranted.  He thought this would decrease some of 
 
            claimant's symptoms but would not give him a new knee.  He 
 
            indicated claimant's prior right knee surgery did not 
 
            involve entering the knee (Jt. Ex. C, p. 6).  The prior 
 
            surgery the doctor referred to was the July 5, 1988 right 
 
            knee arthrotomy (Jt. Ex. D, p. 13A).  An arthrogram was 
 
            taken of the right knee, it  appears, on June 9, 1988 (Jt. 
 
            Ex. F, p. 26).
 
            
 
                 In February of 1989, Dr. Neff was more optimistic 
 
            depending on certain more conservative treatment, but still 
 
            indicated "hopefully, minimal surgery can be required."  He 
 
            predicted somewhere in the future claimant would need a knee 
 
            replacement (Jt. Ex. A, p. 7).
 
            
 
                 Dr. Neff's notes in 1990 (date cut off) reflect an 
 
            arthroscopy is warranted and would be designed to delay the 
 
            necessity of a right knee replacement.  Dr. Neff anticipated 
 
            claimant would be off eight weeks due to the significant and 
 
            heavy work that claimant does.  He indicated claimant was 
 
            having degenerative changes in both knees (Jt. Ex. C, p. 11-
 
            13).
 
            
 
                 On December 10, 1990, Dr. Neff said most of claimant's 
 
            symptoms are degenerative and are associated with age, 
 
            degeneration, predisposition to arthritis, and everyday 
 
            normal activity.  He opined claimant had a 5 percent 
 
            permanent impairment directly related to his 1988 injury and 
 
            the doctor presumed at that time that claimant incurred a 
 
            small cartilage tear and chondral fracture.  The doctor 
 
            indicated he had not seen claimant between May 1989 and 
 
            August 1990 and had released claimant to essentially normal 
 
            activity in May 1989.
 
            
 
                 The undersigned notes the doctor has consistently 
 
            referred to an August 1988 incident walking down an incline 
 
            at work and claimant's knee popped.  It appears the incident 
 
            he is actually referring to occurred around May 28, 1988.
 
            
 
                 On May 1, 1991, Dr. Neff said claimant had a meniscal 
 
            tear based on work activity but that the degenerative 
 
            changes in his knee are also the result of genetic aging and 
 
            other body activities (Jt. Ex. C, p. 14).
 
            
 
                 On June 12, 1991, Dr. Neff opined that:
 
            
 
                    In my opinion, the work history and activity 
 
                 history as described to me has been a substantial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 contributing factor in the degenerative changes of 
 
                 this knee which eventually resulted in 
 
                 degenerative meniscal tearing and arthritic 
 
                 changes.
 
            
 
                    Were his changes totally due to aging and 
 
                 genetics, it would be my supposition that they 
 
                 would be bilateral.
 
            
 
            (Jt. Ex. C, p. 15)
 
            
 
                 It is obvious the doctor was referring in both his May 
 
            and June notes and letters to claimant's right knee, but in 
 
            the June letter, it appears he is referring to the left 
 
            (bilateral), also.
 
            
 
                 It would seem that the doctor is either backtracking or 
 
            somewhat changing his opinion or adding additional confusion 
 
            to claimant's medical records, particularly involving his 
 
            treatment with Dr. Neff.  It appears that he is being 
 
            requested to be clear since his prior letters or medical 
 
            records are not clear as to what his opinions are in 
 
            relation to claimant's condition and his injuries.  The 
 
            undersigned believes this June 12, 1991 letter is the more 
 
            definite and recent letter and which is more supportive of 
 
            the overall medical record of this claimant.
 
            
 
                 The undersigned might note that joint exhibit D 
 
            reflects a few other injury reports in which either no loss 
 
            of time was involved or they were minor incidents.  The 
 
            undersigned sees no relevance of these to claimant's present 
 
            complaints.
 
            
 
                 The undersigned might note that exhibit F is a good 
 
            example of the ridiculous, unnecessary, immaterial documents 
 
            offered in this record as exhibits.  The undersigned cannot 
 
            understand what importance it is to have in the record 
 
            claimant's payroll change documents, payroll savings 
 
            authorization, dermatology records, a hand injury, a check-
 
            off authorization, etc.  Also, the chronological order in 
 
            spots is deplorable.  One example is in a reference to page 
 
            77 of said exhibit, a return to work on February 26, 1979, 
 
            in reference to claimant's right hand.  On page 78, there is 
 
            a November 8, 1989 activity report involving claimant's 
 
            current May 28, 1988 injury, and then on page 79, there is 
 
            an October 3, 1978 check-off authorization directing the 
 
            employer to deduct earnings accumulated to claimant's 
 
            credit, membership dues, etc.  The undersigned does not 
 
            appreciate parties cleaning out their files and dumping 
 
            immaterial stuff to this agency and requesting the deputy to 
 
            sift through immaterial exhibits.  Joint exhibit F, page 78, 
 
            reflects that defendants paid 11 percent permanent 
 
            disability benefits for claimant's right leg, which amounted 
 
            to 24.2 weeks of benefits.
 
            
 
                 Joint exhibit F, page 179, reflects a report by David 
 
            T. Berg, M.D., on July 17, 1988, in which he was referring 
 
            claimant to Dr. Neff or Patrick M. Sullivan, M.D.  The 
 
            document also indicates anticipated surgery on July 5, 1988, 
 
            and also supports the claimant's contention and other 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            medical records as to the desire for a second opinion from 
 
            orthopedic specialists.  Dr. Berg's diagnosis at that time 
 
            was an avulsion fracture right tibial tubercle.
 
            
 
                 On October 24, 1988, Dr. Neff's recommended an MRI scan 
 
            of claimant's right knee.  The doctor indicated that if the 
 
            scan shows a cartilage tear, then an arthroscopic removal of 
 
            the cartilage would be warranted.  He also made a comment 
 
            that claimant certainly is set up for this type of problem 
 
            because of his age, body weight, muscle size and occupation.  
 
            He additionally refers in the letter that "certainly he has 
 
            a good reason to have degenerative meniscal disease in his 
 
            knee because of his squatting type occupation." (Jt. Ex. F, 
 
            p. 190)
 
            
 
                 On November 6, 1990, Dr. Sullivan wrote that claimant 
 
            underwent an arthroscopy on November 2, 1990, and that the 
 
            claimant was in a knee immobilizer (Jt. Ex. F, p. 207).
 
            
 
                 On October 31, 1988, Dr. Neff and Thomas W. Bower, LPT, 
 
            opined that claimant had an 11 percent impairment to his 
 
            right lower extremity.  It is obvious they causally 
 
            connected that to the May 1988 injury.  They referred to the 
 
            27th, but it is obviously referring to May 28, 1988 work 
 
            injury.  On May 22, 1989, Dr. Neff and Thomas Bower wrote 
 
            that claimant still had an 11 percent impairment to his 
 
            right lower extremity based on the injury sustained in May 
 
            of 1988, but also added that the patient has continued to 
 
            have problems and has been told by Dr. Neff that in a three 
 
            to five year period, claimant will need a total knee 
 
            replacement.  They indicated that in view of that fact, the 
 
            replacement would result in a 50 percent impairment to 
 
            claimant's right lower extremity (Jt. Ex. C, p. 28).
 
            
 
                 It appears that Dr. Sullivan's workers' compensation 
 
            report of May 27, 1991, still continued claimant's 
 
            restriction of no ladder climbing, no overtime.  This is 
 
            obviously due to claimant's left knee problem.  The doctor 
 
            indicated follow-up care in six months (Jt. Ex. C, p. 52).
 
            
 
                 The undersigned sees nothing in the record of any 
 
            impairment rating concerning claimant's left knee.  Why one 
 
            was not requested is unknown and surprising.
 
            
 
                 As to claimant's May 28, 1988 right knee injury, the 
 
            parties have stipulated that there was an injury that arose 
 
            out of and in the course of claimant's employment and that 
 
            there was causal connection to his injury and 11 percent 
 
            impairment and there is no dispute to the healing period 
 
            that was incurred, which has been paid.  The only real 
 
            dispute is whether claimant, who desires to have the surgery 
 
            that has been referred by Dr. Neff on more than one 
 
            occasion, should have this right knee surgury paid for by 
 
            defendants.  Defendants seem to indicate that the need for 
 
            this surgery may be related to some other injury or possibly 
 
            the 1990 alleged injuries or from some other cause not clear 
 
            from the defendants' physician.  The undersigned finds that 
 
            it was anticipated that claimant would have surgery in the 
 
            future during his various prolonged treatment with Dr. Neff.  
 
            The greater weight of medical evidence shows that there is a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            need for surgery to claimant's right knee or lower extremity 
 
            and that this surgery is the result of claimant's May 28, 
 
            1988 work injury, and that the claimant is entitled to have 
 
            that surgery and that defendants shall pay for the same, in 
 
            addition to paying for any healing period that might be 
 
            incurred resulting therefrom.  Dr. Neff indicated that with 
 
            the anticipated surgery which appears to be at this time a 
 
            possible knee replacement, it would leave claimant with a 50 
 
            percent impairment.  The undersigned cannot or will not 
 
            speculate as to what claimant's future permanent impairment 
 
            may be.  In other words, whether it would in fact be 50 
 
            percent or less or even more.  It would be hoped in light of 
 
            this decision that the parties can address that amicably in 
 
            the future and not get this agency involved.
 
            
 
                 It is obvious from the record that, even though the 
 
            claimant alleges two additional injuries to the right knee, 
 
            one on August 23, 1990 and one on September 17, 1990, there 
 
            is in fact only, if liability is found, to be one injury.  
 
            It is obvious from the comments of the parties and from the 
 
            record that the claimant is attempting to cover all possible 
 
            positions as to the exact injury date, particularly since 
 
            there is included within alleged trauma to the left knee 
 
            that there is also repetitive trauma based on claimant's 
 
            nature of his work.
 
            
 
                 Claimant did have surgery on his left knee on November 
 
            2, 1990, which resulted in an arthroscopy with meniscectomy 
 
            to repair a left meniscal tear.  This was performed by Dr. 
 
            Sullivan.  Again, as indicated earlier, why a rating wasn't 
 
            asked from Dr. Sullivan is unknown.  Also, why Dr. Sullivan 
 
            was not specifically asked as to causally connecting this to 
 
            a particular injury is unknown.  The undersigned does find 
 
            that Dr. Neff, who has not been as clear as he should, wrote 
 
            on June 12, 1991, that in his opinion the work history and 
 
            activity history as described to him has been a substantial 
 
            contributing factor in the degenerative changes in 
 
            claimant's knee which eventually resulted in degenerative 
 
            meniscal tearing and arthritic changes.  It would appear 
 
            that he may be only referring to claimant's right knee even 
 
            though he does not say, but this letter was written in 1991.  
 
            He doesn't use a plural for knees.  He then goes on and 
 
            indicates that were these changes totally due to aging and 
 
            genetics, it would be his supposition that they would be 
 
            bilateral.  He seems to indicate or at least infer we have 
 
            two separate situations here, a right knee and a left knee.  
 
            His previous reports seem to refer to degenerative changes.  
 
            There is also reference in the medical record as to the 
 
            nature of claimant's occupation, which involves squatting 
 
            and climbing that this is hard on an individual's knees.
 
            
 
                 The undersigned finds that the greater weight of 
 
            medical evidence shows claimant did incur a work injury on 
 
            August 23, 1990, to his right knee while he was working and 
 
            climbing on a feed bin and that this was further aggravated 
 
            on September 19, 1990, but that the actual injury was on 
 
            August 23, 1990.  The undersigned further finds that this 
 
            injury was not only a traumatic injury as to an incident on 
 
            that particular day, but likewise the knee condition was 
 
            affected by the repetitive traumas occurring to claimant's 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            knee in connection with his occupation.  The undersigned 
 
            also finds that this repetitive trauma was increased as a 
 
            result of the fact that claimant incurred a serious injury 
 
            to his right knee and that this resulted in additional 
 
            weight and favoring his left knee, bringing about claimant's 
 
            ultimate condition and further causing his November 2, 1990 
 
            surgery.  The undersigned finds that any degenerative 
 
            disease or condition in claimant's left knee was 
 
            substantially and materially aggravated and lighted up by 
 
            claimant's August 23, 1990 work injury.  It appears claimant 
 
            was working even though it appeared he needed or was going 
 
            to need surgery due to his right knee condition and, that he 
 
            did continue to work until he had his August 23, 1990 left 
 
            knee injury.
 
            
 
                 There is no dispute in regards to healing period as to 
 
            any alleged injury.  The question comes, what is the extent 
 
            of claimant's permanent disability to his left lower 
 
            extremity?  It is obvious claimant had a surgery in November 
 
            of 1990 and that he has restrictions of no climbing.  He has 
 
            had similar problems that he has currently with his right 
 
            knee.  Although a rating would be helpful, the undersigned 
 
            finds that taking into consideration agency precedence and 
 
            expertise, a rating is not mandatory to determine a 
 
            scheduled member permanent disability, nor does a permanent 
 
            impairment rating necessarily limit a person's disability to 
 
            that percent.  The undersigned finds that claimant has, 
 
            based on agency expertise and experience and taking the 
 
            evidence as a whole, an 11 percent impairment also to his 
 
            left lower extremity which was caused by his August 23, 1990 
 
            injury.
 
            
 
                 The undersigned finds that there was no injury incurred 
 
            as previously discussed concerning a September 17, 1990 
 
            alleged injury.
 
            
 
                 As to the 85.27 issue, the parties commented during 
 
            these proceedings and it was obvious from the prehearing 
 
            report and other facts that if the undersigned found 
 
            liability, all the medical bills in dispute would be paid by 
 
            defendant insurance carrier or the employer.  Without going 
 
            into any further detail, the undersigned finds that since 
 
            liability has been found, defendants are to pay all the 
 
            medical expenses at issue herein, including all physical 
 
            therapy, doctor appointments, surgery, and mileage to the 
 
            doctors as set out in claimant's mileage exhibit.  The 
 
            undersigned not only finds causal connection as to the 85.27 
 
            issue, but also that the defendants denied liability for the 
 
            most part as to that injury, therefore, authorization is not 
 
            an issue.  If it is still an issue in light of this decision 
 
            and the undersigned finds that claimant was not only getting 
 
            help by the additional services, but likewise he went to the 
 
            doctor actually through referral from an original company 
 
            authorized doctor.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 23, 
 
            1990 and September 17, 1990, which arose out of and in the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            course of his employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 23, 
 
            1990 and September 17, 1990, is causally related to the 
 
            disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work injury to his right knee on 
 
            May 28, 1988, which has caused claimant to have an 
 
            authorized doctor recommend surgery.
 
            
 
                 Defendants shall provide for and pay for claimant's 
 
            right knee surgery and any healing period connected 
 
            therewith.
 
            
 
                 Claimant incurred a left knee injury on August 23, 
 
            1990, which arose out of and in the course of his 
 
            employment.  This injury caused claimant to have a November 
 
            1990 left knee surgery, incurring a restriction of no 
 
            climbing and resulting in a 11 percent permanent impairment 
 
            to claimant's left lower extremity.
 
            
 
                 Claimant is entitled to have all his medical bills paid 
 
            by defendants, including medical mileage.
 
            
 
                 Claimant did not incur a specific injury on September 
 
            17, 1990, which arose out of and in the course of his 
 
            employment, but incurred and incident resulting from and 
 
            effected by claimant's August 23, 1990 work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Regarding the May 28, 1988 injury (File No. 886779):
 
            
 
                 Defendants shall provide for the necessary surgery to 
 
            claimant's right knee, as recommended by claimant's 
 
            authorized treating specialist, as soon as necessary and pay 
 
            for any healing period connected therewith until the doctor 
 
            releases claimant to return to work, as provided by Iowa 
 
            Code section 85.34(1).
 
            
 
                 Regarding the August 23, 1990 injury (File No. 967334):
 
            
 
                 Defendants shall pay claimant twenty-four point two 
 
            (24.2) weeks of permanent partial disability benefits at the 
 
            rate of two hundred forty-two and 42/100 dollars ($242.42) 
 
            per week beginning December 12, 1990.
 
            
 
                 Defendants shall pay claimant's medical bills and 
 
            medical mileage (Jt. Ex. E).
 
            
 
                 Regarding the alleged September 17, 1990 injury (File 
 
            No. 974055):
 
            
 
                 Claimant takes nothing from the proceedings regarding 
 
            this file.
 
            
 
                 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 32.1.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Tom L Drew
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Mr Dean A Lerner
 
            Assistant Attorney General
 
            Hoover State Office Building
 
            LOCAL
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JERRY L. CHAPMAN,             :
 
                                          :
 
                 Claimant,                :       File No. 887549
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            UMTHUN TRUCKING COMPANY,      :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by Jerry 
 
            Chapman (claimant) commenced with the filing of a petition 
 
            on December 21, 1989 against Umthun Trucking Company 
 
            (Umthun), employer and self insured,(defendant) as a result 
 
            of an alleged injury to claimant's back, occurring on May 
 
            23, 1988.  On February 14, 1991, the matter came on for 
 
            hearing in Fort Dodge, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel Robert 
 
            Kinsey, III of Mason City, Iowa and Umthun by its counsel 
 
            Stephen Spencer of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 
 
                 1.  The live testimony of the claimant, Starla Chapman, 
 
                 Judy Ramsey and Ron Berg.
 
            
 
                 2.  Claimant's exhibits 1-28
 
            
 
                 3.  Defendants' exhibits A-I.
 
            
 
                 Since some of the exhibits were duplicated, the parties 
 
            marked the duplicated material for ease of review.
 
            
 
                 At the close of all evidence, the case was deemed to be 
 
            fully submitted.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 The claimant sustained an injury on May 23, 1988, which 
 
            arose out of and in the course of employment.
 
            
 
                 The alleged injury is a cause of temporary disability.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The alleged injury caused a permanent disability.
 
            
 
                 The extent of entitlement to weekly compensation for 
 
            temporary total disability or healing period, is stipulated 
 
            to be as follows:  
 
            
 
                 a.  Temporary Total Disability:  May 23, 1988 to March 
 
                 36, 1989.
 
            
 
                 b.  Temporary Partial Disability:  March 2, 1989 to 
 
                 September 11, 1989.
 
            
 
                 The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 The commencement date for permanent partial disability, 
 
            is September 12, 1989.
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $286.54 per week based on a gross wage of $453 per week.  
 
            Claimant is married and has one child.  He is entitled to 
 
            three exemptions.
 
            
 
                 All requested medical benefits have been paid or will 
 
            be paid by the defendant and are not in dispute.
 
            
 
                 Defendant paid the following amounts to claimant prior 
 
            to the hearing at the rate of $286.54 per week:
 
            
 
                 Temporary Total Disability:             $12,607.76
 
            Temporary Partial Disability:           $ 5,052.88
 
            Permanent Partial Disability:           $21,490.50
 
            
 
                                          TOTAL:    $39,151.14
 
            
 
                 That there are no bifurcated claims.
 
            
 
            Issues
 
 
 
                 The only issue for resolution is the extent of 
 
            claimant's entitlement to industrial disability.
 
                     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was 33 years 
 
            old.  At the time of his injury, he was 30 years old at the 
 
            time of his injury.  Claimant completed the 11th grade at 
 
            Clarion High School.  Claimant was not a good student while 
 
            he was in high school.  He enjoyed English and history but 
 
            he did not do well in mathematics or science.  After 
 
            claimant left school, he was employed at Palco Manufacturing 
 
            in Clarion (Ex. G, p. 5).  He was laid off in 1977 and he 
 
            joined the Army.  Claimant was a track and truck mechanic 
 
            while in the service.  He also obtained his GED while he was 
 
            in the Army.  Claimant received an honorable discharge in 
 
            1980 and returned to Clarion.
 
            
 
                 2.  Claimant's first employment after his tour of duty 
 
            was with Tom's Knotty Pine Bar and Lounge.  Claimant was a 
 
            bartender and was paid $120.00 per week.  Claimant left that 
 
            employment in 1983 for higher pay.  Claimant then worked for 
 
            the Enterprise Lounge in Webster City.  Claimant earned 
 
            $220.00 per week in this employment.  In this capacity, 
 
            claimant helped manage the bar.  He was responsible for 
 
            ordering, scheduling, a little hiring, keeping the books and 
 
            bartending.  Claimant left this employment for more money 
 
            and because the bar closed.  Both of these jobs involved 
 
            lifting kegs of beer, cases of pop and beer.  Claimant 
 
            lifted these items a few times a week.  A keg of beer weighs 
 
            between 80 to 90 pounds and a case of pop or beer weighs 
 
            about 15 pounds.
 
            
 
                 3.  In 1985, claimant took a truck driving course for 
 
            five weeks to learn how to drive a truck.  After the 
 
            successful completion of this course, claimant was hired by 
 
            Umthun to drive over the road tractor-trailer units.  
 
            Claimant drove primarily Kenworth or Freighliner cab over 
 
            tractors and pulled flatbed trailers.  Claimant occasionally 
 
            drove dry vans.  Claimant did not have a regular route but 
 
            the majority of his driving was between Canada and the 
 
            Southern United States.  Claimant, at times, was required to 
 
            assist with the loading and unloading of his trailer.  
 
            Claimant was also required to lift the tarp that covered 
 
            loads.  The tarp was very heavy.  Claimant estimated the 
 
            weight of the tarp at 200 pounds.  At times the tarp had to 
 
            be moved twice a day by claimant.  
 
            
 
                 4.  Prior to working for Umthun, claimant had an 
 
            largely unremarkable medical and social history.  He grew up 
 
            in a large family.  His mother died in 1968 when claimant 
 
            was aged 9.  Claimant has a heart murmur.  Claimant suffered 
 
            from gastrointestinal problems as a child and young man, but 
 
            those problems seemed resolve themselves.  Claimant was in a 
 
            motorcycle accident in 1980 where he suffered lacerations to 
 
            the face and a minimal concussion.  Claimant also suffered a 
 
            knee injury in 1982.  
 
            
 
                 5.  After claimant began working for Umthun, he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            suffered an injury to his lower back in 1986 when he 
 
            rearended another truck.  He was placed on light duty and 
 
            then later returned to full duty.  Claimant was also injured 
 
            in October of 1987 when he fell against a trailer and 
 
            injured his ribs.  Claimant did not see a medical 
 
            professional for his back in 1986.  He was examined by his 
 
            family doctor for the injury to his ribs.
 
            
 
                 6.  Prior to claimant's injury, Claimant was a 
 
            satisfactory driver for Umthun.  He had disciplininary 
 
            timeoff in 1986, and 1988.  Claimant was penalized for 
 
            damaged cargo and damaged equipment.  He also had problems 
 
            from time to time keeping an accurate log.  Claimant 
 
            received a safe driving award in 1987 and was given several 
 
            commendations for keeping his fuel consumption down.
 
            
 
                 7.  On May 23, 1988, while claimant was traveling on 
 
            Interstate 80 just west of Iowa City, claimant attempted to 
 
            avoid hitting a deer on the interstate.  The deer was in the 
 
            right hand lane.  Claimant moved to the left lane and the 
 
            deer moved in that direction too.  Claimant could not move 
 
            back to the right lane to avoid the deer.  The tractor hit 
 
            the deer.  As a result of the impact, the tractor and 
 
            trailer overturned in the median.  Claimant was eventually 
 
            removed from the tractor and taken to University of Iowa 
 
            hospitals for treatment.  Claimant was diagnosed as having a 
 
            burst fracture at L2, fractures of the superior end plates 
 
            of L1 and L3, and transverse process fracture of L1, L2 and 
 
            L3.  Additionally, claimant had a left sided pneumothorax 
 
            and fractures of ribs 3, 4, 6, 7, 9 and 10.  Claimant also 
 
            had multiple partial extensor tendon lacerations on his left 
 
            hand.  Claimant was treated by Patrick W. Hitchon, M.D., a 
 
            neurosurgeon.
 
            
 
                 8.  Claimant left University Hospitals for Trinity 
 
            Regional Hospital after he had been on absolute bedrest in 
 
            Iowa City from the date of the injury until June 17, 1988.  
 
            Claimant remained at Trinity Regional until his discharge on 
 
            July 2, 1988.  Claimant was treated by D. A. Dethmers, M.D., 
 
            during his stay at Trinity Regional Hospital.  Thereafter, 
 
            claimant was seen by Dr. Hitchon in July, August and 
 
            October.  Over the course of these examinations, Dr. Hitchon 
 
            found that claimant was suffering from minimal pain.  He did 
 
            note that claimant had developed a gibbous over the lumbar 
 
            commensurate with the fracture of L2.  At the conclusion of 
 
            the October visit, Dr. Hitchon found that the L2 fracture 
 
            was healing slowly.  Dr. Hitchon released claimant to return 
 
            to work at the beginning of December 1988.  Claimant was 
 
            assigned a lifting restriction of 30 pounds.  Dr. Hitchon 
 
            believed that this restriction could be lifted in six 
 
            months.  Dr. Hitchon indicated in December of 1988 that 
 
            because of the fracture to claimant's spine, he would always 
 
            have a limitation as far as lifting weight.  Dr. Hitchon 
 
            gave a permanent lifting restriction of 50 pounds.  Claimant 
 
            did not return to see Dr. Hitchon after his last visit in 
 
            October of 1988.  In 1990, Dr. Hitchon reiterated his 
 
            initial lifting restriction.  Claimant should not lift any 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            more than 30 pounds initially.  However, if heavier weights 
 
            are tolerated, then this lifting restriction would be 
 
            lifted.
 
            
 
                 9.  Claimant was not satisfied with the October report 
 
            from Dr. Hitchon and wanted a second opinion.  Claimant went 
 
            to see his family physician, Michael J. Whitters, M.D.  Dr. 
 
            Witters referred claimant to David W. Beck, M.D., a 
 
            neurosurgeon located in Mason City.  After Dr. Beck examined 
 
            claimant, he concluded that claimant could not do a job that 
 
            required alot of lifting and bending.  He also placed a 50 
 
            pound weight restriction on claimant.  At this point, Dr. 
 
            Beck became claimant's primary treating physician.  
 
            
 
                 10. Umthun retained Management Consulting & 
 
            Rehabilitation Services Inc., to assist claimant in his 
 
            rehabilitation program and also to assist him in his return 
 
            to work.  During the initial evaluation period the 
 
            rehabilitation consultant, Clark Williams, suggested that 
 
            claimant enroll in a work hardening program.  Claimant began 
 
            this program in April of 1989.  In May of 1989, claimant 
 
            indicated to Dr. Beck that his back got stiff from the work 
 
            hardening therapy but otherwise he was tolerating the 
 
            program pretty well.  Dr. Beck concluded after the May 
 
            examination, that claimant should get a corset type low back 
 
            support to help him do more activities.  As far as returning 
 
            to work, Dr. Beck thought that claimant could push himself 
 
            as far as he wanted to but that it was unrealistic to think 
 
            that claimant could go back to a job where he had to move 
 
            200 pound items.
 
            
 
                 11. Upon examination of claimant in August of 1989, Dr. 
 
            Beck concluded that claimant has intermittent back pain 
 
            around the site of the fracture.  Claimant had a limited 
 
            range of motion in his back because of stiffness from the 
 
            injury.  He had negative straight leg raising tests.  Dr. 
 
            Beck also found a significant gibbous in claimant's back.  
 
            Based on these findings and the AMA Guides to the Evaluation 
 
            of Permanent Impairment, edition unknown, Dr. Beck rated 
 
            claimant's functional impairment at 15 percent with a 25 
 
            pound repetitive lifting restriction because of the fracture 
 
            to claimant's back.  
 
            
 
                 12. Before claimant began his work hardening program, 
 
            he was evaluated by the Iowa State Division of Vocational 
 
            Rehabilitation.  The results of the vocational 
 
            rehabilitation evaluation indicate that claimant was best 
 
            suited for positions such as a tallier, a mail room clerk, a 
 
            microphotographer, production assembler or small parts 
 
            assembler.  Claimant performed best when he was given tasks 
 
            of a hands-on nature requiring accuracy.  The results of his 
 
            psychological tests did not support any further formal 
 
            academic training for claimant.  Claimant had the most 
 
            success on simple record keeping tasks.
 
            
 
                 13. On March 30, 1989, claimant began working for 
 
            Umthun again as a part-time night dispatcher.  Claimant 
 
            worked 28 hours a week.  Claimant became a full-time 
 
            dispatcher on October 12, 1989.  Claimant's rate of pay was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            $7.00 per hour.  At the time of the hearing, claimant was 
 
            earning $7.50 per hour.  Claimant generally works between 40 
 
            and 45 hours per week.  Claimant has applied for two 
 
            salaried dispatcher positions with Umthun where the pay is 
 
            somewhat higher than his current earnings, but he has not 
 
            been given those jobs.  During claimant's last year of 
 
            employment as a truck driver, claimant earned $27,350.91 in 
 
            gross wages.  Claimant had social security wages of 
 
            $23,056.27 and a net income of $23,641.00.  In 1990, 
 
            claimant's gross wage totaled $16,590.62 as an hourly 
 
            dispatcher.  Claimant's supervisor believes that with time 
 
            and experience, claimant may work into the salaried 
 
            dispatcher positions.  Claimant is a good worker.  
 
            Currently, Umthun believes that claimant is working at his 
 
            capacity in the position of hourly dispatcher.
 
            
 
                 14. In April of 1989, claimant slipped on some ice.  
 
            His back twisted in the fall and claimant had significant 
 
            pain that lasted for at least a week.  Otherwise, claimant 
 
            has not aggravated his back since the injury.
 
            
 
                 15. On November 17, 1989, claimant was evaluated by 
 
            John Walker, M.D., for the purpose of obtaining a functional 
 
            impairment rating.  After an examination, Dr. Walker gave 
 
            claimant a 28 percent functional impairment rating.  Dr. 
 
            Walker diagnosed claimant as having a moderate compression 
 
            fracture of the body of T 12, a compression fracture of L1, 
 
            a very marked compression fracture of L2, and painful 
 
            sprains of L2, L3, L4, L5, and S1.  There is no indication 
 
            that Dr. Walker used the AMA Guides to the Evaluation of 
 
            Permanent Impairment, to arrive at his rating.
 
            
 
                 16. As far as recreational activities are concerned, 
 
            claimant has not participated in many of the things he did 
 
            formerly.  However, claimant did sign up for a compound bow 
 
            and arrow league with his wife.  Claimant has participated a 
 
            couple of times in the league.  
 
            
 
                 17. Claimant still experiences pain in his back daily.  
 
            Claimant has self limited his lifting restriction to 20 
 
            pounds even though his treating physicians have indicated 
 
            that he can lift between 25 and 50 pounds.  Claimant and his 
 
            wife have limited his activities.  Claimant cannot return to 
 
            truck driving because of the jarring, lifting, bending and 
 
            stooping required by that type of work.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            CONCLUSIONS OF LAW
 
            
 
                 The only issue for resolution is the extent of 
 
            claimant's entitlement to industrial disability.
 
                 Claimant is urging that he is entitled to substantially 
 
            more industrial disability than Umthun has previously paid.  
 
            Umthun contends that claimant has been fully compensated 
 
            industrially for the injury he suffered.  
 
            
 
                 Where 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., 258 N.W.2d 899, 902 (Iowa 1935), as 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 person.  The essence of an 
 
            earning capacity inquiry then, is not how much has the 
 
            claimant been functionally impaired, but whether that 
 
            impairment, in combination with the claimant's age, 
 
            education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within the claimant's 
 
            restrictions, if any restrictions have been imposed, has 
 
            caused a loss of earning capacity.  Olson v. Goodyear 
 
            Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich 
 
            v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935);  
 
            Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 654, 658 (1985); Christening v. Hague, Inc., 1 
 
            Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 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 the total, motivation five percent of the total, 
 
            work experience thirty percent of the total etc.  Neither 
 
            does a rating of functional impairment directly correlate to 
 
            the 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 to the body as a whole.  It therefore becomes 
 
            necessary for the deputy or commissioner to draw upon prior 
 
            experience and general and specialized knowledge to make a 
 
            finding with regard to the degree of industrial disability.  
 
            See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 658; Christening, 1 Iowa Industrial Commissioner 
 
            Decisions No. 3, at 535.
 
            
 
                 In this instance there are several factors which 
 
            influence the award of industrial disability.  Claimant has 
 
            a functional impairment as a result of the injury to his 
 
            spine that ranges between 15 percent and 28 percent.  
 
            Claimant has lifting restrictions that range between 20 
 
            pounds and 50 pounds with the greater number of doctors 
 
            suggesting a 50 pound restriction.  Claimant is earning less 
 
            income now than he was at the time of the injury since he is 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            no longer able to drive a truck for Umthun.  Claimant is 
 
            working for the same employer at a different job.  
 
            Claimant's limited formal education and his mathematical 
 
            deficits indicate that retraining in a formal educational 
 
            environment is probably not feasible for claimant.  However, 
 
            his ability level suggests that he can be retrained with on 
 
            the job training.  Retraining is a factor used in 
 
            determining industrial disability.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 89 
 
            (1984).
 
            
 
                 Additionally, Claimant was 30 years old at the time of 
 
            the injury and 33 years old at the time of the hearing.  Due 
 
            to his young age, his industrial disability is not as 
 
            serious as it would be for an older employee.  Becke v. 
 
            Turner-Busch, Inc., 34 Biennial Report of the Iowa 
 
            Industrial Commissioner 34 (Appeal 1979); Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., File Numbers 
 
            782670 & 805200, Slip op. at 6 (Iowa Ind. Comm'r App. April 
 
            28, 1989).  Finally, claimant's motivation is good.  
 
            Claimant participated in each rehabilitation program fully 
 
            and gives good effort to his current employment.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            35 percent industrial disability.
 
            
 
                                      Order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Umthun shall pay to claimant permanent partial 
 
            disability benefits in the amount of thirty-five percent 
 
            (35%) with payment commencing on September 12,1989.  As 
 
            these benefits have accrued, they shall be paid in a lump 
 
            sum together with statutory interest thereon pursuant to 
 
            Iowa Code section 85.30 (1991).
 
            
 
                 2.  Umthun shall have a credit in the amount of 
 
            thirty-nine thousand one hundred fifty-one and 14/100 
 
            dollars ($39,151.14) against any amounts owed.
 
            
 
                 3.  The costs of this action shall be assessed to 
 
            Umthun pursuant to rule 343 IAC 4.33.
 
            
 
                 4.  Umthun shall file claim activity reports as 
 
            required by rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            PO Box 679
 
            Mason City Iowa 50401
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            218 6th Ave Ste 300
 
            PO Box 9130
 
            Des Moines Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed June 17, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JERRY L. CHAPMAN,   :
 
                      :
 
                 Claimant, :      File No. 887549
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            UMTHUN TRUCKING COMPANY, :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant fractured several ribs and his back in a truck 
 
            accident.  At the time of the injury he was 30 years old.  
 
            At the time of the hearing he was 33.  He is working for the 
 
            same employer, though he has suffered a 37 percent decrease 
 
            in income.  His functional impairment rating ranges between 
 
            15 percent to 28 percent.  He is restricted from lifting 
 
            between 20 and 50 pounds.  He is not suited for formal 
 
            academic retraining, but he can be retrained on the job.  He 
 
            has a GED.  Claimant awarded 35 percent industrial 
 
            disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MARY ELLEN SMITH,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                             File No. 887628
 
         DAHL'S FOOD STORES,   
 
                                               A P P E A L
 
              Employer,   
 
                                             D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL COMPANIES,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 20, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         That claimant and defendants shall share equally the costs of the 
 
         appeal including transcription of the hearing.  
 
         
 
         Signed and filed this ____ day of April, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                               BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th St., Ste 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. D. Brian Scieszinski
 
         Attorney at Law
 
         801 Grand Ave., Ste 3700
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
                                    
 
 
 
                                          5-1108; 5-1803; 5-2503
 
                                          Filed April 22, 1993
 
                                          BYRON K. ORTON
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            MARY ELLEN SMITH,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 887628
 
            DAHL'S FOOD STORES,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
                       
 
            5-1108; 5-1803; 5-2503
 
            
 
            Claimant awarded 10% industrial and medical benefits, all of 
 
            which are causally connected to her work injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY ELLEN SMITH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 887628
 
            DAHL'S FOOD STORES,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 21, 1991, at 
 
            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 June 25, 1988.  The record in the proceedings 
 
            consist of the testimony of the claimant; and joint exhibits 
 
            1 through 10.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is causal connection between 
 
            claimant's alleged permanent disability and his June 25, 
 
            1988 alleged injury;
 
            
 
                 2.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 3.  Claimant's entitlement to 85.27 medical benefits.  
 
            The dispute within this issue is causal connection and 
 
            whether expenses were reasonable and necessary.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 39-year-old 1970 high school graduate who 
 
            has considerable post-high school formal education in three 
 
            different vocational or community colleges, resulting in a 
 
            clinical laboratory assistant certificate, September 1971; a 
 
            medical lab technician certificate, December 1973; and, a 
 
            medical technician equipment associate science degree in 
 
            1975.  Claimant took additional continual education courses 
 
            or programs.  She described what her certificates or degrees 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            qualify her to do.
 
            
 
                 Claimant is not working in any special field now that 
 
            basically takes full advantage of the above post-high school 
 
            education.
 
            
 
                 Claimant explained the job she has had before working 
 
            for defendant employer beginning in May of 1988.  Claimant's 
 
            job with defendant employer was in the bakery department 
 
            wrapping buns and placing them in bags, and cake decorating.
 
            
 
                 Claimant had originally applied at Dahl's for the 
 
            bookkeeping position but she was placed in the bakery with 
 
            the understanding that if a bookkeeping job opened, she may 
 
            be considered.
 
            
 
                 On June 25, 1988, while going to the rest room at 
 
            defendant employer's, an adjoining walk-in cooler door was 
 
            pushed hard by another employee who was pushing a loaded 
 
            cart.  The door hit claimant in the mid-part of her back and 
 
            knocked her into the rest room door that she was opening.  
 
            Claimant said she also hit her head and became confused and 
 
            felt like her head was exploding.  Claimant ultimately 
 
            continued to work because the employer was short of help.  
 
            Claimant said that eventually later that day she was 
 
            stocking shelves and was on all fours and was unable to 
 
            stand up without help.  Claimant sought medical help and was 
 
            released on July 4, 1988, to return to work.  She indicated 
 
            she was still a little stiff in her neck and her low back 
 
            still hurt.
 
            
 
                 Claimant said she worked one-half hour on July 9, 1988, 
 
            and was then fired.  She said she was told she was not 
 
            working fast enough.  She then went to Broadlawns and 
 
            eventually to Dr. Roger D. Nyberg, a chiropractor.  She 
 
            related Dahl's Food Stores declined any medical care or 
 
            treatment for her and said they were not responsible for her 
 
            problems.
 
            
 
                 Claimant indicated she would have been able to continue 
 
            working in July of 1988 with her physical condition but did 
 
            not know if she could do the work.  She said the less work 
 
            she did, the worse she got.
 
            
 
                 Claimant said defendant employer ultimately sent her to 
 
            the insurance company in mid-October 1988, and the insurance 
 
            company set up an appointment for her on November 1, 1988, 
 
            with Rodney E. Johnson, M.D.  Claimant received physical 
 
            therapy and cortisone injections.
 
            
 
                 Claimant related her continuing aches and pains.  
 
            Claimant contends she never had any prior low back pain or 
 
            received any treatment for back pain and never had a stiff 
 
            neck or symptoms like she had from this injury.
 
            
 
                 Claimant acknowledged a 1970 car accident and she 
 
            collected ten days of workers' compensation for headache 
 
            pains in 1980 and 1981.  It appears no injury residue exists 
 
            as to these incidents.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant discussed her medical, but the medical records 
 
            will be discussed later.
 
            
 
                 In October 1989, claimant returned to work for Clark-
 
            Thompson part time as a computer bookkeeper-manual data type 
 
            entry.  She was hired to work 25 hours in a seven day work 
 
            week but said she worked 60 to 70 hours.  Claimant contends 
 
            her headaches became more intense and frequent and her right 
 
            hand did not operate the same as her left.  She said she had 
 
            difficulty holding a pencil or a fork and would drop plates.  
 
            She related her difficulty in doing her jobs satisfactorily 
 
            and was spending more time doing less work.  Claimant, 
 
            making $7.50 per hour, quit this employment in August 1990, 
 
            after approximately eight months.
 
            
 
                 Claimant now has worked for approximately one year at 
 
            the Des Moines Plasma Center earning $5.00 per hour and 
 
            hopes to eventually obtain a manager's job which would pay 
 
            more.  Claimant explained her problems as being unable to do 
 
            certain activities or perform certain functions that she was 
 
            able to do without difficulty prior to her alleged June 1988 
 
            injury.  Claimant contends her symptoms today are the same 
 
            as when Dr. Johnson released her, and she emphasized she 
 
            could not go back to lab work because of the need to handle 
 
            glass tubes and slides.  She said that if she dropped a 
 
            slide exhibit, then the data would be lost.
 
            
 
                 Claimant said she could not do manual data entry work 
 
            now and could not find another bookkeeping job that she was 
 
            able to do.  Claimant related various injuries she has had 
 
            in the past.  She acknowledged that Kent Sahlstrom, M.D., 
 
            who is also her daughter's doctor, released her on July 5, 
 
            1988, with no heavy lifting for one week.  Claimant has not 
 
            seen Dr. Johnson since December of 1989.  She indicated he 
 
            said he could not do anything more for her.
 
            
 
                 Claimant had a functional capacity test and contends 
 
            she had to go to a chiropractor after this test.
 
            
 
                 Claimant acknowledged she went to Dr. Johnson to get 
 
            authorization to see a chiropractor.  Dr. Johnson indicated 
 
            he did not care if she went to a chiropractor but said the 
 
            insurance company would not pay.  Dr. Johnson did not want 
 
            the chiropractor to adjust her neck, but it was okay as to 
 
            her low back.
 
            
 
                 Claimant acknowledged that Dr. Johnson did not give her 
 
            any written restrictions and that she then started looking 
 
            for part-time work.  She then only looked for cashier or 
 
            bookkeeper jobs and never applied in the medical field.  
 
            Claimant related the various jobs she has held or applied 
 
            for prior to the current job and since August 1989.  
 
            Claimant indicated she told the potential employer that she 
 
            had neck problems and needed more treatments.
 
            
 
                 Claimant was questioned as to getting her master's 
 
            degree in order to get a lab manager job since claimant had 
 
            a four year degree and a high grade point average.  Claimant 
 
            basically contends she could not do the required work even 
 
            if she got the added education.  Claimant made it clear she 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cannot adequately use her hands due to this injury so as to 
 
            be able to do the job she used to do using her educational 
 
            training.
 
            
 
                 Claimant related that after July 1988, she never went 
 
            back to Dahl's again to look for work.  It is also obvious 
 
            she never thought this could be a long-term situation, 
 
            particularly working in the bakery taking into consideration 
 
            her education and training.  Claimant was making $5.00 per 
 
            hour at Dahl's.  She is currently making similar wages at 
 
            the Des Moines Plasma Center.  Claimant contends the latter 
 
            job is easier on her body as she can stand rather than sit 
 
            and file as she did at Clark-Thompson.
 
            
 
                 On March 17, 1989, Rodney E. Johnson, M.D., discussed 
 
            an anterior cervical fusion of C3-4, but did not anticipate 
 
            that claimant will make any significant improvement in the 
 
            future nor that her symptoms would become worse.  He left 
 
            the decision as to any surgery to claimant but did not think 
 
            surgery would be necessary if claimant was doing well.
 
            
 
                 On January 9, 1990, Dr. Johnson said claimant reached 
 
            maximum healing and opined a 5 percent permanent impairment.  
 
            He indicated he did not believe claimant's complaints were 
 
            related to any gymnastic activities claimant was doing prior 
 
            to June 25, 1988.  He also did not relate claimant's right 
 
            arm complaints to claimant's cervical complaints (Joint 
 
            Exhibit 1, page 3).  On February 28, 1990, Dr. Johnson said 
 
            there is support for the fact that claimant has a thoracic 
 
            outlet impression syndrome in her right arm and he did not 
 
            feel that this was related to the June 25, 1988 injury (Jt. 
 
            Ex. 1, p. 2).  On June 5, 1991, Dr. Johnson wrote that 
 
            claimant was last seen by him on December 14, 1989, and that 
 
            claimant's June 25, 1988 injury at Dahl's is causally 
 
            connected to her complaints that claimant was rated with a 5 
 
            percent permanent impairment for her cervical spine injury 
 
            at work.  He did not specify any restrictions but suggested 
 
            claimant have a functional capacity test (Jt. Ex. 1, p. 1).
 
            
 
                 Roger D. Nyberg, D.C., wrote on October 11, 1991, that 
 
            claimant had a 15 percent permanent impairment to her body 
 
            as a whole and imposed no specific restrictions (Jt. Ex. 1, 
 
            p. 24).  His first examination of the claimant was on July 
 
            1, 1988.
 
            
 
                 Thomas W. Bower, L.P.T., saw claimant on various 
 
            occasions and on September 25, 1991, wrote, after putting 
 
            claimant through various tests, that there was a great deal 
 
            of subjectivity to claimant's complaints and there are very 
 
            few objective findings which remain consistent with those 
 
            complaints.  He indicated some mention has been made of 
 
            thoracic outlet syndrome but indicated clinical testing does 
 
            not reveal classic findings.  Mr. Bower set out certain 
 
            restrictions which would place claimant in a light work 
 
            classification.  He referred to Dr. Johnson's previously 
 
            established 5 percent impairment based on the cervical spine 
 
            pathology and Mr. Bower said he would add no additional 
 
            impairment based on the suspicion of thoracic outlet 
 
            syndrome since he has no consistent objective findings to 
 
            base an opinion (Jt. Ex. 1, p. 30).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Alexander Matthew, M.D., upon referral from Dr. 
 
            Johnson, wrote on December 15, 1989, that claimant should 
 
            consider surgical decompression of her right thoracic 
 
            outlet.  In June of 1989, he indicated claimant has minimal 
 
            findings to suggest a right thoracic outlet compression 
 
            syndrome.
 
            
 
                 The parties stipulated that claimant incurred an injury 
 
            that arose out of and in the course of her employment on 
 
            June 25, 1988.  They are disputing the extent of claimant's 
 
            permanent disability and that any permanent disability is 
 
            causally connected to the June 25, 1988 injury.  Claimant 
 
            has seen various doctors.  Claimant has the burden of proof.  
 
            The greater weight of medical testimony indicates that 
 
            claimant incurred an injury in her cervical area which 
 
            resulted in at least a 5 percent permanent impairment to 
 
            claimant's body as a whole.  There is confusing and contrary 
 
            medical evidence as to whether claimant has or does not have 
 
            a thoracic outlet syndrome condition.  Defendants contend 
 
            that is what claimant has, if she has anything, and that 
 
            this was not caused by her June 25, 1988 injury.  Claimant 
 
            takes the position that it is not believed claimant had 
 
            thoracic outlet syndrome and contends claimant's problems 
 
            are related to her June 25, 1988 injury.
 
            
 
                 At the time of claimant's June 25, 1988 injury, she was 
 
            not working in the medical field in which she had extensive 
 
            training.  It is not fully clear to the undersigned why she 
 
            left that field or did not attempt to pursue her livelihood 
 
            in that field rather than take the job at the bakery.  
 
            Claimant indicated that when she took the bakery job with 
 
            defendant employer, she was hoping to work into the office 
 
            or bookkeeper job which, of course, would still not be 
 
            within her field of extensive training.  Claimant now seems 
 
            to contend that she is not able to go back to that field or 
 
            it would be worthless to get additional training which would 
 
            earn her more money because she would not now be able to do 
 
            the work anyway.  There is no indication claimant would ever 
 
            have gone back to that field, particularly based on her past 
 
            history and the job she had taken outside of the medical 
 
            field.  Claimant is now working at the Des Moines Plasma 
 
            Center, which can be complimentary to some extent to her 
 
            medical field education and she hopes to possibly get a 
 
            manager job, which would pay her more money than she is now 
 
            earning.
 
            
 
                 Thomas Bower, in his summary, indicated there is a 
 
            great deal of subjectivity to claimant's complaints.  He 
 
            also indicated that the lifting capacities correlated with 
 
            lifts suggestive of submaximal work being done (Jt. Ex. 1, 
 
            p. 30).  The undersigned questions the extent of claimant's 
 
            complaints and alleged inability to do certain work although 
 
            in claimant's testimony, it appears she at least feels she 
 
            is a hard worker and did more at her jobs than she was hired 
 
            for.
 
            
 
                 Claimant's income was decreasing substantially before 
 
            her June 25, 1988 injury and her 1990 income appears to have 
 
            gone to a little bit more than claimant was making in 1987.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The greater weight of medical testimony indicates that 
 
            the extent of claimant's problems with her right arm is 
 
            related to something other than claimant's cervical injury 
 
            on June 25, 1988.  In Dr. Johnson's January 9, 1990 report 
 
            in which he discussed claimant's complaint of increased 
 
            symptoms in her right arm consistent with thoracic outlet, 
 
            he had asked Dr. Matthews to re-evaluate her for this 
 
            condition.  He then indicated that he did not feel 
 
            claimant's right arm complaint was related to claimant's 
 
            cervical complaint (Jt. Ex. 1, p. 3).  Claimant has the 
 
            burden of proof.  As to claimant's right arm complaint, the 
 
            claimant has failed to causally connect that complaint with 
 
            her June 25, 1988 injury at defendant employer's.
 
            
 
                 It is not clear as to the extent of any restrictions 
 
            claimant has that is strictly related to her cervical injury 
 
            and to what extent her less than maximal efforts had to do 
 
            with the extent of those restrictions.  There is no 
 
            separation of those restrictions between claimant's right 
 
            arm complaints and her cervical complaints.  It would appear 
 
            that overhead work would not be recommended due to the 
 
            cervical injury.  The undersigned feels that claimant does 
 
            have some restriction as a result of the June 25, 1988 
 
            injury and that there is a 5 percent impairment based on the 
 
            cervical spine pathology.  It would seem that Mr. Bower 
 
            agreed with this, also.
 
            
 
                 From claimant's testimony, it would seem that she 
 
            related her arm condition as being a major factor in her 
 
            inability to perform the work in the medical field in which 
 
            she has been trained.  She indicated she would be unable to 
 
            perform the certain tests or hold test tubes, etc., without 
 
            dropping the same.  As set out above, it would seem that 
 
            this particular condition is not causally connected to 
 
            claimant's cervical injury if one relies on Dr. Johnson's 
 
            opinion.  The undersigned accepts that as the opinion of a 
 
            specialist who treated or worked with claimant for the 
 
            longest period of time.
 
            
 
                 The undersigned also notes that on joint exhibit 6, 
 
            page 20, the claimant was warned on June 8, 1988, that she 
 
            was taking twice as long to do a function of her job than it 
 
            should have taken.  This was prior to her June 25, 1988 
 
            injury.  Although there is no indication why claimant was 
 
            slow, it would be understandable that to do the particular 
 
            job involved, namely, slicing bread, claimant would be using 
 
            her hands and arms.  Claimant's job at Clark-Thompson also 
 
            involved extensive use of her arms and hands and as she 
 
            indicated, she was working a lot more hours than she was 
 
            hired to work.  Claimant indicated she was working up to 70 
 
            hours a week at times.
 
            
 
                 Taking into consideration claimant's age; pre-June 25, 
 
            1988 and post-June 25, 1988 medical and work history; 
 
            intelligence; income prior to and after her injury; severity 
 
            of her injury; the healing period which is not in dispute; 
 
            her motivation; education; and functional impairment, the 
 
            undersigned finds that claimant has a 10 percent industrial 
 
            disability.  The disability benefits begin on March 21, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1989.
 
            
 
                 As to the 85.27 medical benefits issue, the dispute 
 
            being whether the medical was causally connected, reasonable 
 
            and necessary, the undersigned finds that under the total 
 
            circumstances and evidence in this case, the medical 
 
            claimant incurred was necessary and reasonable under the 
 
            circumstances herein.  It appears that defendants were 
 
            denying liability and that claimant was getting treatment 
 
            for the complaints of which at the time the treatment was 
 
            sought.  It was not clear whether it was because of the 
 
            cervical complaints only, which claimant contends resulted 
 
            also in arm complaints, or whether they were strictly 
 
            because of a complaint arising from something other than 
 
            claimant's cervical injury of June 25, 1988.  Claimant did 
 
            obtain some relief from this treatment.  The undersigned 
 
            finds that defendants shall pay the medical bills that are 
 
            in dispute herein.  It appears those bills are set out in 
 
            joint exhibit 2, page 1, totaling $6,804.53.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 25, 
 
            1988, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a 5 percent permanent functional 
 
            impairment to the body as a whole as a result of a June 25, 
 
            1988 injury to claimant's cervical C3-4 area.
 
            
 
                 Claimant failed to sustain her burden as to any causal 
 
            connection between claimant's alleged right arm complaints 
 
            and her June 25, 1988 work injury.
 
            
 
                 Claimant incurred a 10 percent industrial disability as 
 
            a result of her June 25, 1988 work injury.
 
            
 
                 Defendants are responsible to pay claimant's medical 
 
            bills as set out on joint exhibit 2, page 1, in the amount 
 
            of $6,804.53.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of eighty-six and 98/100 dollars ($86.98) per week beginning 
 
            March 21, 1989.
 
            
 
                 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 claimant's medical bills as 
 
            set out in joint exhibit 2, page 1, for a total of six 
 
            thousand eight hundred four and 53/100 dollars ($6,804.53).
 
            
 
                 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.
 
            
 
            
 
            
 
                                          ______________________________
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1108; 5-1803; 5-2503
 
                                          Filed December 20, 1991
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY ELLEN SMITH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 887628
 
            DAHL'S FOOD STORES,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1803; 5-2503
 
            
 
            Claimant awarded 10% industrial and medical benefits, all of 
 
            which are causally connected to her work injury.
 
            
 
 
            
 
            Page   1 
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORY L. SPOTTEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 887642
 
            ROLSCREEN COMPANY,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Glory L. 
 
            Spotten, claimant, against Rolscreen Company, employer, and 
 
            Employers Mutual Companies, insurance carrier, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on May 4, 1988.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on January 22, 1991, in Des Moines, Iowa.  The 
 
            record was considered fully submitted at that time.  
 
            Claimant was present and testified at the hearing.  Also 
 
            present and testifying was Marla K. Schiebout.  The record 
 
            in this case consists of joint exhibits A-I, claimant's 
 
            exhibit J, and defendants' exhibit 1.
 
            
 
                               preliminary matters
 
            
 
                 Claimant's attorney objected to the admission into 
 
            evidence of claimant's exhibit 1 pertaining to office 
 
            records of Peter D. Wirtz, M.D., dated January 14, 1991, 
 
            because such evidence was obtained after the discovery 
 
            deadline.  Defendants argued that claimant had orally waived 
 
            the discovery deadline and agreed to be examined by Dr. 
 
            Wirtz.  Claimant retorted that the agreement was made for 
 
            settlement purposes and not for evidence to be used at the 
 
            hearing.  The undersigned is not persuaded by claimant's 
 
            argument as insurance companies do not ordinarily pay for 
 
            examination they can only use conditionally.  Claimant's 
 
            argument is without merit and her objection is overruled.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order, the 
 
            parties have stipulated that defendants are entitled to a 
 
            credit under section 85.38(2) for sick pay/disability income 
 
            in the amount of $92.43, and that defendants paid claimant 
 
            13.714 weeks of compensation at the rate of $45.67 per week 
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
            prior to the hearing.
 
            
 
                 The issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            injury and the disability on which she now bases her claim; 
 
            and,
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability/healing period benefits and permanent partial 
 
            disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and all 
 
            the evidence contained in the exhibits and makes the 
 
            following findings.
 
            
 
                 Claimant was born on May 21, 1964 and left school in 
 
            the middle of the ninth grade.  Two months later she 
 
            received her GED certificate.  She worked at Rolscreen from 
 
            March 1987 through September 1988.  Prior to that time, she 
 
            worked as a cashier, waitress and corn sorter.  During the 
 
            first six months at Rolscreen, she worked as an electronic 
 
            press operator and then moved to the third shift where she 
 
            operated a chop saw.
 
            
 
                 Claimant testified that in the course of performing her 
 
            job as a chop saw operator, while lifting a plank weighing 
 
            up to 40 pounds, she felt a tearing sound in her back.  This 
 
            occurred in the early morning on May 4, 1988.  At that time, 
 
            she was working the midnight to 8:00 a.m. shift.  She 
 
            testified that she worked the rest of the day and after 
 
            sleeping on her back that night she could not get out of bed 
 
            the next morning.  She then called the company nurse and 
 
            reported that she had hurt her back.
 
            
 
                 On May 5, 1988, she presented herself, without any 
 
            instructions from the company, to Mater Clinic for 
 
            evaluation of thoracic back pain.  Treatment notes indicate 
 
            tenderness over the spinal processes T7, T8 with 
 
            paravertebral muscle spasm.  Reflexes in the upper 
 
            extremities were normal and x-rays were negative.  The 
 
            diagnosis of thoracic strain was made and Indocin Robaxin 
 
            was prescribed (Joint Exhibit E).
 
            
 
                 Company records indicate that claimant called in sick 
 
            on May 4, 5 and 6, 1988 (Jt. Ex. I, page 36), and returned 
 
            to work on May 9, 1988 (Jt. Ex. A, p. 6).  An appointment 
 
            was made for her to see John Kanis, M.D., at Pella Medical 
 
            Center.  On May 9, 1988, Dr. Kanis diagnosed lumbar 
 
            strain-paravertebral muscle spasm and prescribed Parafon 
 
            Forte, as needed.  He recommended conservative therapy and 
 
            restricted squatting, lifting and arm movement above 
 
            shoulder level (Jt. Ex. D., pp. 18-19).
 
            
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
                 On May 20, 1988, claimant saw Dr. Kanis for a follow-up 
 
            evaluation.  At this time, claimant complained of soreness 
 
            in the right lower thoracic region especially with twisting.  
 
            An examination revealed mild tenderness of the right lower 
 
            thoracic paravertebral musculature.  Dr. Kanis noted poor 
 
            effort as far as using upper extremity strength.  A thoracic 
 
            and lumbar manipulation was given with good articulation.  
 
            No restriction in range of motion was evident on 
 
            examination.  A diagnosis of thoracic strain was made and 
 
            claimant was released to return to work with restrictions of 
 
            no lifting of greater than 20 pounds and avoidance of any 
 
            work with hands and arms above shoulder height (Jt. Ex. D, 
 
            p. 5).
 
            
 
                 On May 24, 1988, the day she was scheduled to return to 
 
            work, claimant called Pella Medical Center and related to 
 
            Dr. Kanis that she hurt her back when she lifted her 
 
            daughter who weighed 20 pounds out of the car and carried 
 
            her to the house (Jt. Ex. A, p. 7; Jt. Ex. D, p. 5).
 
            
 
                 Claimant saw Scott B. Neff, D.O.., on June 13, 1988.  
 
            She presented with complaints of aching and pain in her mid 
 
            back and down into her lower back.  There were no signs of 
 
            acute neurologic abnormality and conservative therapy was 
 
            recommended.  A follow-up examination was conducted on June 
 
            27, 1988.  At this time, claimant complained of numbness and 
 
            buckling in her right leg.  Dr. Neff recommended a thoracic 
 
            and lumbar MRI study to rule out a herniated disc.  The 
 
            results were essentially within normal limits.  Another 
 
            examination was conducted on August 1, 1988 and she was much 
 
            improved.  Dr. Neff stated that "I believe she could return 
 
            to significantly light duty but cannot return to heavy 
 
            activity."  Dr. Neff then referred claimant to Physical 
 
            Therapy Consultants for an impairment rating.  Based on 
 
            substantial decreased range of motion of the spine, a 12 
 
            percent impairment to the body as a whole rating was made.  
 
            However, an addendum to the report stated as follows:
 
            
 
                    Based on the range of motion loss this rating 
 
                 is in accordance with the American Medical 
 
                 Association guides.  We, however, find this to be 
 
                 a highly unusual situation for one to incur this 
 
                 amount of impairment from a lumbar strain.  
 
                 Therefore, we are not completely sure this is a 
 
                 true reflexion [sic] of the patient's impairment.  
 
                 Perhaps further physical therapy is needed to 
 
                 restore the patient's range of motion.
 
            
 
            (Jt. Ex. B, p. 15)
 
            
 
                 On January 14, 1991, claimant was evaluated by Peter D. 
 
            Wirtz, M.D.  She presented with complaints of right lower 
 
            back pain with lifting and bending and swelling in the right 
 
            back area with pain.  However, on examination, no neurologic 
 
            or restriction of function was noted.  Dr. Wirtz concluded:  
 
            "Should there have been an injury in May, 1988, it would 
 
            have resolved over a 3-4 week period of treatment that was 
 
            instituted on 5/9/88."  He further opined that "The 
 
            examination reveals full range of motion, no neurologic 
 
            finding, nor is there any objective changes on diagnostic 
 

 
            
 
            Page   4 
 
            
 
            
 
            
 
            
 
            studies to indicate any permanent functional impairment."  
 
            It was his impression that "There are no specific conditions 
 
            that would restrict her within her physiologic strength and 
 
            dexterity." (Defendants' Exhibit 1).
 
            
 
                 Claimant testified that she voluntarily terminated her 
 
            job at Rolscreen on August 29, 1988.  Rolscreen Company 
 
            personnel records indicate that she was employed there from 
 
            March 10, 1987 to September 7, 1988 and was dismissed due to 
 
            the fact that she had not reported to work for three days 
 
            and it was assumed that she abandoned her job (Jt. Ex. I, p. 
 
            1).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined in this case is 
 
            whether claimant received an injury on May 4, 1988, which 
 
            arose out of and in the course of her employment with 
 
            Rolscreen Company.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on May 4, 1988, 
 
            which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 

 
            
 
            Page   5 
 
            
 
            
 
            
 
            
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 After carefully reviewing the total evidence in this 
 
            case, the undersigned concludes that claimant sustained a 
 
            back strain while lifting wooden planks during the course of 
 
            her employment with Rolscreen.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 4, 1988 
 
            is causally related to the disability on which she now bases 
 
            her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 

 
            
 
            Page   6 
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 The greater weight of the evidence demonstrates that 
 
            claimant's injury is causally related to the disability on 
 
            which she now bases her claim.  The work injury was a cause 
 
            of absence from work and loss earnings during a period of 
 
            recovery from the injury.  Dr. Kanis, the company doctor, 
 
            recommended rest and physical therapy during a period of 
 
            recuperation.
 
            
 
                 Claimant is seeking weekly benefits for both temporary 
 
            and permanent disability.  In the case of a claim for 
 
            temporary disability, the claimant must establish that the 
 
            work injury was a cause of absence from work and lost 
 
            earnings during a period of recovery from the injury.  
 
            Generally, a claim of permanent disability invokes an 
 
            initial determination of whether the work injury was the 
 
            cause of permanent physical impairment or permanent 
 
            limitation in work activity.
 
            
 
                 The evidence in this case clearly establishes that 
 
            claimant's muscle strain resulted in a temporary absence 
 
            from work during the period commencing May 4, 1988 and 
 
            ending May 20, 1988, when Dr. Kanis released her to return 
 
            to work.  Evidence that claimant was performing strenuous 
 
            and heavy work prior to the work injury was uncontroverted.  
 
            She was not disabled in any manner until the May 4, 1988 
 
            incident.
 
            
 
                 Claimant has not established that the work injury is a 
 
            cause of permanent disability.  Claimant reinjured or 
 
            aggravated her back the day before she was scheduled to 
 
            return to work when she was lifting her daughter.  She 
 
            admitted at the hearing that prior to that incident she was 
 
            ready, willing and able to return to work.  No physician who 
 
            treated and/or examined claimant found her to be permanently 
 
            disabled as a result of her May 4, 1988 work injury.  
 
            Therefore, on the whole record, claimant has only 
 
            established by a preponderance of the evidence that the work 
 
            injury was the cause of temporary total disability, not 
 
            permanent disability.
 
            
 
                 Claimant is entitled to 2.429 weeks of temporary total 
 
            disability benefits at the stipulated rate of $245.67, for 
 
            the period commencing May 4, 1988 and ending May 20, 1988.  
 
            Because defendants have voluntarily paid benefits in excess 
 
            of the award of temporary disability herein, claimant shall 
 
            take nothing further from these proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 

 
            
 
            Page   7 
 
            
 
            
 
            
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harold B Heslinga
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa IA 52577
 
            
 
            Mr Cecil L Goettsch
 
            Attorney at Law
 
            1100 Des Moines Bldg
 
            Des Moines IA 50309-2464
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1801
 
                      Filed February 6, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLORY L. SPOTTEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 887642
 
            ROLSCREEN COMPANY,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant found entitled to temporary total disability 
 
            benefits due to a work injury but permanency not 
 
            established.