BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         _________________________________________________________________
 
                     
 
         DONNA HALL,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                           File Nos. 887987/936087
 
         DES MOINES REGISTER,       
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         March 18, 1994 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of July, 1994.
 
         
 
         
 
                                     ________________________________
 
                                     BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark S. Pennington
 
         Attorney at Law
 
         620 Fleming Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. James C. Huber
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         418 6th Ave.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed July 21, 1994
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            DONNA HALL,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File Nos. 887987/936087
 
            DES MOINES REGISTER,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DONNA HALL,                   :
 
                                          :
 
                 Claimant,                :      File Nos. 887987
 
                                          :                936087
 
            vs.                           :               1018232
 
                                          :
 
            DES MOINES REGISTER,               A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This consolidated contested case proceeding is upon 
 
            petitions in arbitration filed by claimant Donna Hall 
 
            against her employer, The Des Moines Register, and its 
 
            insurance carrier, Liberty Mutual Insurance Company.  In 
 
            file number 887987, claimant alleges a work injury to the 
 
            neck, shoulder and right upper extremity on July 26, 1988.  
 
            In file number 936087, she alleges a work related back 
 
            injury on November 21, 1989.  File number 1018232 alleged a 
 
            work related hernia suffered on February 4, 1992.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa on 
 
            September 20, 1993.  The record consists of the testimony of 
 
            claimant, Marge Hanlin and William Haynes along with joint 
 
            exhibits 1-7.  Defendants' exhibit 1 was excluded.
 
            
 
                 During the course of hearing, claimant dismissed her 
 
            petition in file number 1018232 (the 1992 hernia claim) 
 
            without prejudice.  Permission was granted.
 
            
 
                                      issues
 
            
 
                 In file number 887987, the parties entered into the 
 
            following stipulations:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on July 26, 
 
                    1988;
 
            
 
                    2.  The injury caused temporary disability, 
 
                    the extent of which is no longer in dispute;
 
            
 
                    3.  The correct weekly compensation rate is 
 
                    $300.06;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                    4.  Affirmative defenses have not been 
 
                    raised;
 
            
 
                    5.  Medical benefits are no longer in 
 
                    dispute; and,
 
            
 
                    6.  Defendants voluntarily paid certain 
 
                    benefits prior to hearing.
 
            
 
                 Issues presented for resolution in file number 887987 
 
            include:
 
            
 
                    1.  Whether the injury caused permanent 
 
                    disability; and,
 
            
 
                    2.  The nature and extent of permanent 
 
                    disability, if any.
 
            
 
                 In file number 936087, the parties entered into the 
 
            following stipulations:
 
            
 
                    1.  Claimant sustained a back injury arising 
 
                    out of and in the course of employment on 
 
                    November 21, 1989;
 
            
 
                    2.  Entitlement to temporary total 
 
                    disability or healing period is no longer in 
 
                    dispute;
 
            
 
                    3.  Permanent disability, if any, should be 
 
                    compensated industrially as an injury to the 
 
                    body as a whole;
 
            
 
                    4.  The appropriate commencement date for 
 
                    permanent disability benefits is October 30, 
 
                    1991;
 
            
 
                    5.  The appropriate compensation rate is 
 
                    $306.22;
 
            
 
                    6.  Affirmative defenses have not been 
 
                    raised;
 
            
 
                    7.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    8.  Defendants voluntarily paid certain 
 
                    benefits prior to hearing.
 
            
 
                 Issues presented for resolution in file number 936087 
 
            include:
 
            
 
                    1.  Whether the injury caused permanent 
 
                    disability (or, as defendants allege, 
 
                    whether the injury merely caused temporary 
 
                    aggravation of a previous back injury); and,
 
            
 
                    2.  The extent of industrial disability, if 
 
                    any.
 

 
            
 
            Page   3
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Donna Hall, age 42 at hearing, is a 1969 high school 
 
            graduate.  Ms. Hall described herself as an above average 
 
            student.  She has since taken two management courses at a 
 
            community college, stress management courses, and is 
 
            currently enrolled in a cosmetology school anticipating 
 
            graduation in July or August, 1994.
 
            
 
                 Ms. Hall has work experience as a computer operator, 
 
            secretary/receptionist, school bus driver and as a 
 
            journeyman mailer for defendant, a large metropolitan 
 
            newspaper.  She was so employed from June 25, 1983 through 
 
            October 30, 1991 (per the appeal decision in companion Job 
 
            Service litigation, 91A-UI-14362-HT).  A journeyman mailer 
 
            is responsible for numerous tasks associated with bundling 
 
            and shipping newspapers for delivery.  Frequent lifting in 
 
            excess of 50 pounds is required.
 
            
 
                 On August 5, 1986, claimant suffered a back injury at 
 
            the Register while lifting a "jogger" machine, a device used 
 
            to vibrate newspapers in the bundling process.  A claim 
 
            based on this injury was briefly litigated (June 15 through 
 
            July 17, 1987) in this office under file number 830229.  
 
            That contested case was dismissed without prejudice and has 
 
            not been refiled.  Defendants are of the view that the 
 
            admitted back injury of November 21, 1989 was only a 
 
            temporary aggravation of Ms. Hall's condition resulting from 
 
            the 1986 injury.  They believe that any permanent disability 
 
            is attributable to the 1986 injury.
 
            
 
                 The 1988 injury, found below to be a shoulder injury, 
 
            resulted from a slip and fall on a wet spot.  One of the 
 
            evaluating physicians, Jerome G. Bashara, M.D., is a board 
 
            certified orthopedic surgeon.  His chart notes of July 23, 
 
            1992, detail claimant's history to that point with respect 
 
            to her back injury.  Except as hereafter noted, that history 
 
            is accepted as fact:
 
            
 
                 This is a 41 year old white male [sic] who injured 
 
                 her low back on 8-5-86.  She was apparently 
 
                 working at the Des Moines Register and Tribune 
 
                 when she lifted a "jogger" weighing approximately 
 
                 65 lbs.  She developed immediate pain in the low 
 
                 back and bilateral lower extremity pain, bilateral 
 
                 lower extremity numbness and tingling, right 
 
                 greater than left.  The patient heard a snap in 
 
                 her back at the time of the injury.
 
            
 
                 She was seen at the Mercy Skywalk clinic, x-rays 
 
                 were taken.  Diagnosis:  lumbar muscle strain, 
 
                 right hip pain and right hamstring strain.
 
            
 
                 She continued to have symptoms as above.
 
            
 
                 On 8-12-86 the patient was seen by Dr. David 
 
                 McClain.  Impression:  Acute lumbosacral strain..  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 He recommended complete bedrest, no work, 
 
                 medications, and physical therapy.
 
            
 
                 Physical therapy was not instituted.
 
            
 
                 She continued to have low back pain, bilateral 
 
                 lower extremity pain, right worse than left.
 
            
 
                 On 9-29-86 the patient was seen by Dr. David 
 
                 Boarini.  His impression was the patient had a 
 
                 moderate low back strain.  He recommended 
 
                 Robaxisol and aggressive physical therapy.
 
            
 
                 The patient was returned to work on 11-11-86 with 
 
                 a 50 lb lifting limit.  The patient did return to 
 
                 work, without restrictions.
 
            
 
                 She continued to have symptoms of low back pain, 
 
                 progressively worsening.
 
            
 
                 CT scan of the lumbar spine was performed on 
 
                 2-24-87 at IMMC.
 
            
 
                 On approximately 3-12-87 the patient was lifting 
 
                 65 lb objects when she aggravated her right sided 
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 low back pain.
 
            
 
                 She was seen on 4-1-87 by Dr. Raymond Webster.  
 
                 His impression was resolving acute lumbar strain, 
 
                 right.  She was returned to light work on 4-6-87.
 
            
 
                 She continued to have right sided hip and low back 
 
                 pain.  Numbness and tingling in both legs.
 
            
 
                 On 4-14-87 x-rays of the right hip were taken.  
 
                 Dr. Webster indicated they were negative.  
 
                 Diagnosis: chronic right lumbar strain of 
 
                 myofascial origin.  She returned to light duty 
 
                 with no lifting greater than 20 ls [sic].  She 
 
                 will work 4 hours a day for one week and then 
 
                 followup.
 
            
 
                 The patient states she was only put on a light 
 
                 duty job for one week and then returned to her 
 
                 regular job.
 
            
 
                 On 5-6-87 the patient was seen by Dr. Ronald 
 
                 Bunten.  His recommendations were for a trial of 
 
                 work hardening, but probable job retraining to 
 
                 more sedentary sort of work activities.  He did 
 
                 not feel she would likely be able to return to her 
 
                 usual work.  The patient was also given a TEN's 
 
                 unit with some relief.
 
            
 
                 She continued to have low back pain, bilateral 
 
                 lower extremity pain, right greater than left with 
 
                 numbness and tingling in both lower extremities, 
 
                 right greater than left.
 
            
 
                 She continued to see Dr. Webster.  She did undergo 
 
                 a work hardening program.
 
            
 
                 She continued to have symptoms as above.  The 
 
                 patient was off work during 1988-1989 due to right 
 
                 shoulder injury.
 
            
 
                 On 11-21-89 the patient reinjured her low back 
 
                 while lifting paper bundles at work, she developed 
 
                 a sudden stabbing pain in the right low back.
 
            
 
                 She was seen on 11-22-89 at the Iowa Methodist 
 
                 Medical Center, ER.  Diagnosis:  Acute paraspinous 
 
                 muscle strain.  She was given Tylenol No. 3 and 
 
                 Parafon Forte.
 
            
 
                 She was seen the same day by Dr. Michael Makowsky 
 
                 the company physician.  His diagnosis was acute 
 
                 paraspinal muscle strain.
 
            
 
                 The patient was returned to work on 11-30-89.
 
            
 
                 On 1-1-90 the patient was rechecked in the IMMC ER 
 
                 for her low back pai [sic].
 
            
 
                 The patient continued to have fairly constant low 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 back pain, left side, bilateral lower extremity 
 
                 pain, right greater then left.  Numbness and 
 
                 tingling in both lower extremities right greater 
 
                 than left.
 
            
 
                 In approximately January of 1991, the patient 
 
                 developed an increase in the low back and right 
 
                 lower extremity pain.  No known injury.  She was 
 
                 seen at the Mercy Medical Clinic by Dr. Reel.  
 
                 X-rays were taken on 2-22-91.  Due to the 
 
                 patient's continued symptoms she was referred to 
 
                 Dr. Scott Erwood.
 
            
 
                 MRI was performed on 3-26-91 which revealed a 
 
                 shallow left sided L5-S1 protrusion/HNP.  Mild to 
 
                 moderate degeneration of the L5-S1 disc and 
 
                 early/mild degeneration of suggested in the L3-4 
 
                 disc.
 
            
 
                 Dr. Erwood felt the patient was a candidate for a 
 
                 lumbar myelogram and CT.  This was carried out on 
 
                 4-5-91 and was positive for a left sided HNP and a 
 
                 profound right renal hydronephrosis.
 
            
 
                 The patient ultimately underwent a nephrectomy, 
 
                 Dr. Quinlan, June of 1991, however, she continued 
 
                 to have low back and bilateral lower extremity 
 
                 pain and numbness in the lower extremities, right 
 
                 worse than left.
 
            
 
                 The patient returned to see Dr. Erwood on 8-23-91.  
 
                 He recommended EMG and nerve conduction studies of 
 
                 the right lower extremity.  He also indicated an 
 
                 epidural steroid injection may be beneficial.  She 
 
                 was referred to physical therapy.  EMG was not 
 
                 performed.  Epidurals were performed.
 
            
 
                 The patient was also seen by Dr. Dan McGuire on 
 
                 10-10-91 for a second opinion, no specific 
 
                 treatment was outlined with regard to the low 
 
                 back.
 
            
 
                 The patient was terminated on 10-31-91.
 
            
 
                 The patient has continued to have constant sharp 
 
                 stabbing pain in the low back, left sided, pain in 
 
                 both lower extremities and hips right greater than 
 
                 left.  Numbness and tingling in bilateral lower 
 
                 extremities, right greater than left.
 
            
 
                 The pain is aggravated by prolonged sitting, 
 
                 standing, walking, and stairclimbing.  Also she 
 
                 cannot tolerate any bending, stooping, twisting, 
 
                 squatting, or lifting activities.
 
            
 
                 As Dr. Bashara noted, claimant was terminated by the 
 
            Register on October 31, 1991.  The Register then contested 
 
            claimant's eligibility for unemployment insurance benefits 
 
            on the basis of claimed job misconduct.  The issue was 
 
            decided adversely to the Register by Administrative Law 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Judge Bonny Hendricksmeyer in an appeal decision issued 
 
            January 10, 1992, under the auspices of the Divison of Job 
 
            Service, a sister agency to this.  That determination is 
 
            entitled to preclusive effect.  The discharge was not for 
 
            disqualifying job misconduct.
 
            
 
                 Dr. Bashara also testified by deposition on September 
 
            28, 1992.  He indicated that on examination, claimant showed 
 
            moderate spasm and tenderness at L5-S1.  He described the 
 
            observed "spasm" as the muscles being contracted, tight and 
 
            swollen.  Dr. Bashara specified that this was an objective 
 
            finding as opposed to a subjective finding.  Dr. Bashara 
 
            also found a restricted range of motion in the lumbar spine, 
 
            leading to his diagnosis of a disc injury at L5-S1 and a 
 
            musculoligamentus strain of the lumbar spine.  He believed 
 
            claimant would have difficulty in employment requiring her 
 
            to lift, bend, pull or to perform essentially physical 
 
            labor.  Impairment was rated at nine percent of the body as 
 
            a whole.
 
            
 
                 On direct examination, Dr. Bashara was never asked to 
 
            distinguish between the 1986 and 1989 back injuries.  On 
 
            cross-examination, he identified the 1986 injury as the 
 
            "primary" injury leading to his impairment rating.  In 
 
            particular, Dr. Bashara noted a CAT scan done in 1987 showed 
 
            a disc herniation at L5-S1.  He agreed that subsequent 
 
            injuries were "an aggravation of the initial injury of 
 
            1986." (Deposition, Page 26), but on re-direct examination, 
 
            testified that the 1989 injury "increased" the amount of 
 
            injury to the herniated disc, agreed that it would be 
 
            difficult to divide impairment between the two injuries.  He 
 
            added:
 
            
 
                 A.  Well, it is my opinion that it took both the 
 
                 injury of 1986 and 1989 to produce the injury 
 
                 which I diagnosed in my evaluation in July of 
 
                 1992.  It took both those injuries to produce that 
 
                 injury that I saw or the condition that I saw.
 
            
 
                 Dr. Bashara also evaluated claimant for her shoulder 
 
            injury, as discussed below.  Ms. Hall was also evaluated for 
 
            both conditions by Daniel J. McGuire, M.D., also a board 
 
            certified orthopedic surgeon.  Dr. McGuire testified by 
 
            deposition on May 12, 1993.
 
            
 
                 Dr. McGuire stressed that claimant did not have 
 
            reproducible major neurological deficits.  He believed "100 
 
            percent" that claimant had back pain, but could not diagnose 
 
            the source and agreed with Dr. Bashara that no surgical 
 
            option was apparent.  Dr. McGuire felt it significant that 
 
            claimant's herniated disc is on the left side, while her 
 
            more significant lower extremity symptoms are on the right.  
 
            Indeed, Dr. McGuire referred to a "little disc bulge" on the 
 
            opposite side and suggested that "some people might say a 
 
            disc bulge is normal, myself included" (Deposition, page 
 
            34).
 
            
 
                 Although Dr. McGuire in his October 10, 1991 report 
 
            rated impairment of the spine at zero and recommended no 
 
            specific restrictions, he agreed in his deposition testimony 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            that a five percent impairment rating would not be 
 
            unreasonable.  Dr. McGuire also testified that he would 
 
            place no restrictions on claimant specifically due to her 
 
            back, but conceded that a 70 pound lifting restriction and 
 
            further restrictions against repetitive heavy lifting and 
 
            bending are appropriate, based mostly on claimant's age and 
 
            size (5 feet 2 inches, 125 pounds).
 
            
 
                 Claimant saw a number of practitioners for her back 
 
            complaints subsequent to 1986.  Different physical 
 
            restrictions were imposed by various physicians, but it is 
 
            not clear that any of these were intended to be permanent.  
 
            However, Raymond L. Webster, M.D., saw claimant after the 
 
            1987 lifting incident shown in Dr. Bashara's history.  On 
 
            April 15, 1987, Dr. Webster wrote that "at the present time" 
 
            claimant's job was exacerbating her lower back and that she 
 
            might be able to continue working in a different area at the 
 
            Register if she were placed in a job requiring less heavy 
 
            lifting and less frequent bending and twisting.  He 
 
            suggested that it might be beneficial to approach claimant 
 
            about the possibility of retraining for a less strenuous 
 
            line of work.  Similarly, Dr. Bashara's history cites Dr. 
 
            Ronald Bunten as recommending a trial of work hardening in 
 
            May 1987, but suggesting the probable need of job retraining 
 
            to a more sedentary work.
 
            
 
                 As between the opinions of Dr. Bashara and Dr. McGuire, 
 
            the undersigned concludes that Dr. Bashara is more 
 
            persuasive.  That physician takes into account the objective 
 
            signs of muscle spasm and limited lumbar range of motion, 
 
            agrees with other physicians (unlike Dr. McGuire) that the 
 
            1987 CAT scan showed a herniated disc, and both his 
 
            impairment rating and suggested restrictions are more 
 
            consistent with agency experience in cases of such chronic 
 
            and protracted back pain.  Those restrictions, which also 
 
            take into account the shoulder injury discussed below, are 
 
            set forth in Dr. Bashara's deposition testimony:
 
            
 
                 A.  I would recommend that for her it would be my 
 
                 opinion that she would do best in a job in which 
 
                 it was basically sedentary, where she would not 
 
                 have to bend, stoop, twist or lift; where she 
 
                 wouldn't have to use her right shoulder like in a 
 
                 production line above shoulder level; and in a job 
 
                 where she could, you know, sit for a few hours, 
 
                 get up, walk a little bit and maybe stand some.  
 
                 So I think basically one of the more sedentary 
 
                 type of occupations.
 
            
 
                 Dr. Bashara also evaluated claimant on August 9, 1991 
 
            for her shoulder problems.  He charted the following 
 
            history, which is also accepted as fact:
 
            
 
                 This is a 40 year old right handed white female 
 
                 who injured her right shoulder on 7-26-88 while 
 
                 working at the Des Moines Register.  She 
 
                 apparently slipped and fell on a wet floor landing 
 
                 on the right elbow jerking her shoulder.  She had 
 
                 immediate right shoulder pain as well as numbness 
 
                 and tingling in the right hand.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 The patient was seen by Dr. Richard Reel of the 
 
                 Mercy Medical Clinic.  Treatment included workup 
 
                 for cervical spine pain.
 
            
 
                 The patient continued to have right shoulder pain, 
 
                 numbness and tingling in the hand.
 
            
 
                 On October 17, 1988 she underwent an EMG and nerve 
 
                 conduction velocity which was normal.
 
            
 
                 The patient was then seen by Dr. Peter Wirtz on 
 
                 11-21-88.  X-rays were taken of the right shoulder 
 
                 and interpretted [sic] as normal.  Diagnosis:  
 
                 right rhomboid muscle pain referral cervical spine 
 
                 and stiffness, right shoulder.  Dr. Wirtz 
 
                 recommended physical therapy.
 
            
 
                 She continued to have difficulty grasping objects 
 
                 with pain in both shoulders.
 
            
 
                 She continued to see Dr. Reel.  She was 
 
                 subsequently referred to Dr. Randy Winston and was 
 
                 seen on March 22, 1989.  It was Dr. Winston's 
 
                 opinion the patient had evidence of rotator cuff 
 
                 injury with pain on motion of the right shoulder, 
 
                 pain over the appropriate regions and distribution 
 
                 of pain over the deltoid to its insertion on the 
 
                 humerus.
 
            
 
                 Dr. Reel then referred the patient to Dr. Marshall 
 
                 Flapan and was seen on 4-13-89.  X-rays were 
 
                 reviewed.  His diagnosis was probable right 
 
                 rotator cuff tear.
 
            
 
                 An arthrogram and CT were performed at Mercy, 
 
                 4-19-89.  This was interpretted [sic] as normal.
 
            
 
                 Dr. Flapan's diagnosis was probable bursitis right 
 
                 shoulder, no evidence of rotator cuff tear.  He 
 
                 recommended Voltaren 75 mg bid.  The patient was 
 
                 unable to tolerate this for any length of time due 
 
                 to stomach upset.  On 5-4-89 she underwent an 
 
                 injection of DepoMedrol and Lidocaine into the 
 
                 shoulder.  She does not recall having improvement 
 
                 following this.  She was returned to work on 
 
                 5-22-89.
 
            
 
                 She continued to have constant right shoulder 
 
                 pain.  Numbness and tingling in the right hand.  
 
                 Popping in the shoulder.  Limited range of motion 
 
                 of the shoulder.
 
            
 
                 The patient was seen again by Dr. Flapan on 
 
                 8-24-89.  Diagnosis:  Recurrent bursitis right 
 
                 shoulder.  On 9-21-89 the shoulder was injected 
 
                 with DepoMedrol and Lidocaine, no improvement.
 
            
 
                 In October of 1989 the patient was working with 
 
                 some heavy papers, which aggravated the right 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 shoulder pain.  She was seen by Dr. Flapan on 
 
                 10-23-89, treated with over-the-counter Ibuprofen.
 
            
 
                 The patient was again seen on 10-30-89.  She had 
 
                 continued discomfort in the right upper extremity, 
 
                 loss of grip and numbness and tingling.  EMG was 
 
                 performed at Mercy on 11-2-89.  This was reported 
 
                 as being within normal limits.
 
            
 
                 Bone scan was performed on 11-16-89 at Mercy 
 
                 Hospital, which revealed "minimal asymmetry of AC 
 
                 joints, of doubtful significance."
 
            
 
                 The patient did not followup with Dr. Flapan.
 
            
 
                 The patient then began seeing Dr. Michael 
 
                 Makowsky, company physician for her right shoulder 
 
                 pain.  Treatment included medications and a wrist 
 
                 brace.
 
            
 
                 On 12-12-89 she was seen in the IMMC ER for back 
 
                 and right shoulder pain.
 
            
 
                 The patient was then referred by Dr. Makowsky to 
 
                 Dr. D. Quenzer and was seen on 1-5-90.  His 
 
                 diagnosis were:  1) work related pain dysfunction 
 
                 syndrome, right upper extremity 2) Possible 
 
                 component of brachial plexus neuritis and/or focal 
 
                 compressive neuropathies, difficult to localize, 
 
                 clinically or by EMG.  3) Possible subacromial 
 
                 impingement as original insiting event.  Dr. 
 
                 Quenzer recommended the patient be seen at the 
 
                 Mayo Clinic in Rochester, MN.
 
            
 
                 She continued to have constant right shoulder 
 
                 pain.
 
            
 
                 She was seen at the Mayo Clinic on 3-2-90, right 
 
                 shoulder x-rays and EMG were performed which were 
 
                 normal.  The patient was evaluated by Dr.'s P. 
 
                 Amadio, hand surgeon; J. K. Campbell, Neurology; 
 
                 J. L. Opitz of Physical Therapy; and Dr. S. 
 
                 Goldman.  Diagnosis:  1) Pain dysfunction right 
 
                 upper extremity.  2) Components of myofascial pain 
 
                 and thoracic outlet syndrome.  Recommendations 
 
                 were for nonsurgical treatment and pain management 
 
                 clinic.  Also recommendations were made for the 
 
                 patient not to return to work.
 
            
 
                 The patient continued to have constant right 
 
                 shoulder pain.
 
            
 
                 A work hardening program was instituted through 
 
                 the Iowa Methodist Hospital, as well as pain 
 
                 management.
 
            
 
                 Dr. Makowsky returned the patient to half days in 
 
                 the mailroom.
 
            
 
                 The patient was seen on 6-25-90, she was told she 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 could be rechecked on a prn basis.
 
            
 
                 The patient was seen on 12-7-90 by Dr. Makowsky 
 
                 for increased pain in the right shoulder, arm, and 
 
                 hand.  EMG and nerve conduction velocity was 
 
                 performed on 12-14-90 which was interpretted [sic] 
 
                 by Dr. Denhart as normal.  The patient was started 
 
                 on Volteran and referred back to Dr. Quenzer.
 
            
 
                 The patient was seen by Dr. Quenzer on 1-8-91.  
 
                 Diagnosis:  1)  Chronic pain, right upper 
 
                 extremity work-related and possible thoracic 
 
                 outlet syndrome versus carpal tunnel syndrome, 
 
                 possible subacromial impingement.  The right 
 
                 carpal tunnel was injected, the patient had to 
 
                 return to work that night.  She felt this 
 
                 injection aggravated her shoulder pain.
 
            
 
                 She continues to have right shoulder pain.  Also 
 
                 numbness and tingling in the right hand.  The pain 
 
                 does radiate up into the neck.  She relates 
 
                 stiffness in the shoulder.  She has pain on range 
 
                 of motion.  Popping in the shoulder.
 
            
 
                 Dr. Bashara found that claimant lacked range of motion 
 
            in the right shoulder and showed marked tenderness over the 
 
            rotator cuff and subacromial bursa and in the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            infraclavicular region.  He also noted moderate crepitation 
 
            during abduction and forward flexion.  Diagnosis was of a 
 
            rotator cuff injury to the right shoulder with chronic 
 
            rotator cuff tendinitis and subacromial bursitis.  Dr. 
 
            Bashara rated impairment at nine percent of the upper 
 
            extremity and recommended restrictions against excessive or 
 
            repetitive use of the right arm above shoulder level.
 
            
 
                 In his deposition testimony, Dr. Bashara agreed that 
 
            sophisticated objective testing had not objectively shown 
 
            the cause of claimant's pain (which, incidentally, she found 
 
            so severe as to actually consider amputation of her dominant 
 
            right arm), but found this consistent with his diagnosis.  
 
            Dr. Bashara causally related claimant's condition to the 
 
            work injury of July 26, 1988.  He also specified that his 
 
            impairment rating to the upper extremity should, because of 
 
            the location of the injury, be converted to a "body as a 
 
            whole" rating, which he assigned as five percent.
 
            
 
                 Claimant was also evaluated for her shoulder by Dr. 
 
            McGuire.  Dr. McGuire noted the dearth of objective evidence 
 
            for claimant's symptomatology, emphasizing that nothing had 
 
            been found which might require surgical repair.  Dr. McGuire 
 
            was not inclined to rate impairment or issue physical 
 
            restrictions, but deferred to those "other experts' who had 
 
            found restriction in range of motion of the shoulder joint.  
 
            This includes Dr. Bashara.  Accordingly, Dr. Bashara's 
 
            opinion is again given greater weight than that of Dr. 
 
            McGuire.
 
            
 
                 Note also that claimant was seen at the Mayo Clinic for 
 
            a full work-up of her shoulder problems.  The discharge 
 
            report, prepared by Sherwin Goldman, M.D., showed a 
 
            diagnosis of pain dysfunction of the right upper extremity 
 
            with components of myofascial pain and thoracic outlet 
 
            syndrome.  Dr. Goldman concluded that as of March 1990 
 
            claimant was not capable of work due to pain.
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The stipulated 1989 back injury will be considered 
 
            first.  It will be recalled that the parties dispute whether 
 
            that injury caused permanent disability, or merely a 
 
            temporary aggravation of claimant's 1986 injury.
 
            
 
                 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 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Dr. Bashara's opinion on causation has been accepted as 
 
            entitled to the most weight.  In his opinion, both the 1986 
 
            injury and the 1989 injury here under review combined to 
 
            cause claimant's current condition.
 
            
 
                 This opinion necessary raises the question of whether 
 
            apportionment of disability is appropriate.  Apportionment 
 
            of disability between a preexisting condition and a current 
 
            injury has been held proper only when some ascertainable 
 
            portion of the ultimate industrial disability existed 
 
            independently before the employment-related aggravation of 
 
            disability occurred.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984).  However, it has also been held that to be 
 
            apportionable, the preexisting disability must not be the 
 
            result of another injury with the same employer for which 
 
            compensation was not paid.  Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990).  
 
            
 
                 Based on the history set forth by Dr. Bashara, it must 
 
            be concluded that the 1986 injury also was related to 
 
            employment with the Des Moines Register, and the record 
 
            fails to reflect that compensation for permanent industrial 
 
            disability was paid.  Accordingly, apportionment is 
 
            improper.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant has work experience as a computer operator, 
 
            secretary/receptionist, and bus driver along with her 
 
            employment with the Des Moines Register.
 
            
 
                 Dr. Bashara recommended a sedentary job where claimant 
 
            would not have to bend, stoop, twist or lift and in which 
 
            she should have the ability to alternate sitting, standing 
 
            and walking.  He also noted that pain is aggravated by 
 
            prolonged sitting, standing, walking and stair climbing and 
 
            that claimant cannot tolerate any bending, stooping, 
 
            twisting, squatting or lifting. (He also limited use of the 
 
            right arm above shoulder level, discussed further below).
 
            
 
                 Based on those restrictions, claimant cannot continue 
 
            her work with the Des Moines Register and could not accept 
 
            work as a school bus driver.  Employment as a computer 
 
            operator or secretary/receptionist would require 
 
            accommodation, especially of the need to alternate 
 
            positions.  However, claimant is clearly capable of 
 
            retraining, and has taken the initiative to improve her 
 
            employability by taking a cosmetology course.  Nonetheless, 
 
            she is clearly foreclosed from much of the employment she 
 
            could perform prior to the work injury, and has sustained a 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            considerable loss of earning capacity.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent partial disability equivalent to 35 
 
            percent of the body as whole (175 weeks) attributable to the 
 
            1989 back injury.
 
            
 
                 The parties have stipulated that the appropriate 
 
            commencement date for permanent partial disability benefits 
 
            in file number 936087 is October 30, 1991.  That stipulation 
 
            is accepted.
 
            
 
                 The parties also dispute whether the 1988 upper 
 
            extremity or shoulder injury caused permanent disability.  
 
            Dr. Bashara's opinion on causation has again been accepted 
 
            in this claim.  Claimant has met her burden of proof.
 
            
 
                 Defendants also dispute that the 1988 injury should be 
 
            compensated industrially, rather than as a scheduled member 
 
            disability to the arm.  Although diagnoses vary, it is clear 
 
            that disability and range of motion impairment exists in the 
 
            shoulder.  Accordingly, the injury is compensated 
 
            industrially.  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
            1174, 38 N.W.2d 161 (1949).
 
            
 
                 The only work restriction resulting from claimant's 
 
            shoulder injury limits overhead use of the affected arm.  
 
            Loss to claimant's earning capacity is relatively minimal.  
 
            It is held that claimant has sustained a five percent 
 
            industrially disability (25 weeks) as a result of the 1988 
 
            shoulder injury.  The parties have stipulated to the same 
 
            rate and same commencement date as in the 1989 back injury.
 
            
 
                                      ORDER
 
            
 
                 File Number 1018232 is dismissed without prejudice.
 
            
 
                 In File Number 936087:
 
            
 
                 Defendants shall pay one hundred seventy-five (175) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred and 06/100 dollars ($300.06) commencing 
 
            October 30, 1991.
 
            
 
                 Defendants shall have credit for all permanent partial 
 
            disability benefits voluntarily paid to date.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 In File Number 887987:
 
            
 
                 Defendants shall pay twenty-five (25) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of three hundred and 06/100 dollars ($300.06) commencing 
 
            October 20, 1991.
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 Defendants shall have credit for all permanent partial 
 
            disability benefits voluntarily paid to date.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Mark S Pennington
 
            Attorney at Law
 
            620 Fleming Building
 
            Des Moines Iowa 50309
 
            
 
            Mr James C Huber
 
            Attorney at Law
 
            500 Liberty Building
 
            418 6th Avenue
 
            Des Moines Iowa 50309-2421
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed March 18, 1994
 
                                               DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                                          
 
            DONNA HALL,                   :
 
                                          :
 
                 Claimant,                :      File Nos. 887987
 
                                          :                936087
 
            vs.                           :               1018232
 
                                          :
 
            DES MOINES REGISTER,          :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STELLA FISTER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888021
 
            CHILDRENS HABILITATION        :
 
            CENTER,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Stella 
 
            Fister, claimant, against her former employer, Childrens 
 
            Habilitation Center, and its insurance carrier Liberty 
 
            Mutual Insurance Company.
 
            
 
                 The record in this case consists of claimant's exhibits 
 
            1 through 5; defendants' exhibits A, B and C; and, testimony 
 
            from the claimant.  The case was heard on April 30, 1992, at 
 
            Des Moines, Iowa.
 
            
 
                                      issues
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained a permanent disability 
 
            due to her work-related injury on August 25, 1988;
 
            
 
                 2.  If claimant has sustained a permanent disability, 
 
            the extent of her industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Stella Fister, was born on July 23, 1960.  At 
 
            the time of the hearing, she was 31 years of age.  Ms. 
 
            Fister is a high school graduate, and has attended several 
 
            nurse's aide and medications courses.  She is a certified 
 
            medications aide as well as a certified nurse's aide.  She 
 
            received her education through Des Moines Area Community 
 
            College.
 
            
 
                 Although claimant has held jobs as a waitress and as a 
 
            housekeeper, the majority of her work experience has been 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            focused in the nurse's aide field.  Claimant has worked as a 
 
            direct care worker providing complete care to physically and 
 
            mentally handicapped people ranging from one year of age to 
 
            age to 21 years of age.  Her job duties have included 
 
            overall care for patients, including bathing and dressing 
 
            patients, changing their clothes and lifting them from 
 
            wheelchairs to beds.  Lifting requirements have ranged from 
 
            20 to 150 pounds.  If claimant worked during the day shift, 
 
            assistance was usually available to perform the heavier 
 
            lifting duties.  On the night shift, frequently no help was 
 
            available.
 
            
 
                 For the defendant employer, Childrens Habilitation 
 
            Center, claimant worked as a lead worker and medications 
 
            aide which required her to perform duties previously 
 
            described.  She also had additional responsibilities of 
 
            charting and supervising medications administered to 
 
            patients.  As an alternate supervisor, claimant supervised 
 
            workers and patient care, and usually performed additional 
 
            duties of providing total care to patients on the floor.
 
            
 
                 On August 25, 1988, claimant was working the night 
 
            shift.  As she was performing duties on her rounds, she was 
 
            walking between two rooms and stepped on a paper clip.  
 
            Claimant slid, started to fall, and caught herself on the 
 
            side of a dressing table.  She continued to work, but felt 
 
            pain on the left side of her back.  Claimant was unable to 
 
            complete her shift, informed her supervisor about the 
 
            incident, and sought treatment from the emergency room at 
 
            Mercy Hospital Medical Center, in Des Moines, Iowa.  She was 
 
            treated for an acute lumbar sprain and was advised not to do 
 
            any heavy lifting.  She was to return to the emergency 
 
            department in four days (Claimant's Exhibit 1, page 38).
 
            
 
                 During this time period, claimant became aware that she 
 
            was pregnant.  Due to her pregnancy, claimant saw Harold E. 
 
            Eklund, M.D.  He recommended that claimant do no heavy 
 
            lifting and he was unable to prescribe medications for her 
 
            back pain due to the pregnancy.  In October of 1988, 
 
            claimant sought conservative treatment and was examined by 
 
            Charles Denhart, M.D., at the Low Back Institute.  He 
 
            recommended a 25 pound lifting restriction, and kept 
 
            claimant off of work.  Her examination revealed good range 
 
            of motion in the back.  Dr. Denhart was unable to take x-
 
            rays or prescribe medications due to claimant's pregnancy.  
 
            He diagnosed claimant's condition as a low back strain (Cl. 
 
            Ex. 1, p. 11).
 
            
 
                 Approximately one month later, claimant returned to Dr. 
 
            Denhart after undergoing physical therapy.  Dr. Denhart's 
 
            records indicated that the pregnancy prevented aggressive 
 
            treatment, and recommended that claimant undergo home 
 
            exercises (Cl. Ex. 1, p. 10).
 
            
 
                 In January of 1989, claimant again visited Dr. Denhart 
 
            and continued to complain of low back pain and left buttock 
 
            pain.  Again, Dr. Denhart diagnosed a strain and noted no 
 
            radiculopathy (Cl. Ex. 1, p. 9).
 
            
 
                 Claimant's baby was born in March of 1989, and in May 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of 1989, she underwent a CT scan of the low back.  The 
 
            results showed a bulging disc at the L5-S1 level but did not 
 
            indicate compression or entrapment of the neural elements.  
 
            The CT scan also showed mild degenerative changes in the low 
 
            back (Cl. Ex. 1, pp. 5 and 8).
 
            
 
                 The physical therapy notes indicate that after seven to 
 
            eight visits, claimant continued to display a high pain 
 
            level and low tolerance to exercise.  Both Dr. Denhart and 
 
            the physical therapist recommended that claimant return to 
 
            work on a limited hourly basis with a gradual return to work 
 
            and full duties in twenty days (Cl. Ex. 1, p. 19).  Dr. 
 
            Denhart also recommended that claimant not lift more than 50 
 
            pounds, and claimant indicated she felt she could not do any 
 
            work at the Childrens Habilitation Center due to this work 
 
            restriction (Cl. Ex.1, P. 3).
 
            
 
                 In August of 1989, claimant was referred to John 
 
            Kelley, M.D., for further treatment.  His examination 
 
            revealed normal back motions and normal reflexes and 
 
            negative results on the straight leg raising tests.  An MRI 
 
            of the low back indicated that claimant had an impingement 
 
            on the cauda equina at the L5-S1 level.  He felt claimant 
 
            suffered from a chronic myofascial lumbosacral strain, and 
 
            felt that she had aggravated her condition by both the 
 
            delivery of her child in March of 1989 and her obesity.  Dr. 
 
            Kelley stated that claimant currently had a 7 percent 
 
            permanent partial impairment to the body as a whole, and if 
 
            she were operated on to correct the impingement, she would 
 
            sustain an 8 percent permanent partial disability to the 
 
            body as a whole.  He recommended claimant return to light 
 
            duty work (Cl. Ex. 1, pp. 15-16).
 
            
 
                 From September of 1989 through February of 1990, 
 
            claimant underwent vocational rehabilitation as provided for 
 
            by Counselor Lori Hackett.  Although a job search was met 
 
            with some success, claimant demonstrated low motivation in 
 
            pursuing employment, and other factors such as family, her 
 
            obesity, and lack of job skills impinged upon her ability to 
 
            secure suitable employment.  However, claimant did secure a 
 
            position with O-Harco Building Supply Company in January of 
 
            1990.  She performed clerical duties including taking orders 
 
            from the telephone and computer data entry.  She was hired 
 
            to work 40 hours per week at $5.70 per hour.  Claimant held 
 
            this position for one month and then quit, stating that she 
 
            did not like the work and did not feel qualified to perform 
 
            the work.  After several months of unemployment, claimant 
 
            secured a position with Equifax, a position which she 
 
            continues to hold today.  This position allows her to work 
 
            part-time hours, although she occasionally works eight hours 
 
            per day.  She is paid by the number of cases she completes 
 
            by securing necessary paperwork, and earns approximately 
 
            $600 every two weeks.  Claimant stated that the lowest 
 
            amount she has earned has been $200 biweekly and she has 
 
            earned a high of $900 biweekly.  In this position, claimant 
 
            does not have paid sick leave nor paid vacation, and no 
 
            pension, profit sharing or retirement program.
 
            
 
                 In April of 1991, and July of 1990, Dr. Denhart was of 
 
            the opinion that claimant had sustained a 10 percent 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            permanent partial disability to the body as a whole which 
 
            was causally related to the incident at work in August of 
 
            1988.  He stated that all of her disability is related to 
 
            the back condition and not by claimant's weight problem or 
 
            pregnancy (Cl. Ex. 1, pp. 1-2).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is the nature and 
 
            extent of claimant's industrial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 31 years old.  
 
            She is a high school graduate, and holds several 
 
            certifications in the field of nurse's aide.
 
            
 
                 One factor to be considered is whether claimant is able 
 
            to return to her previous employments as a nurse's aide.  
 
            Frequently, aides are required to lift more than 50 pounds 
 
            while performing their regular job duties.  Claimant's 50 
 
            pound lifting restriction prevents her from performing some 
 
            of the job duties as a nurse's aide, but would allow her to 
 
            work in the nursing field as a supervisor.  This restriction 
 
            places her in the medium work category.
 
            
 
                 Claimant has been able to secure suitable employment 
 
            outside of the nurse's aide profession.  Her current 
 
            position allowed claimant some flexibility in the number of 
 
            hours she works on a weekly basis, and she is paid according 
 
            to the amount of work completed.
 
            
 
                 Claimant was evaluated by Dr. Denhart, who assigned 
 
            claimant a 10 percent permanent impairment due to the work 
 
            injury.  She was also evaluated by Dr. Kelley, who opined 
 
            that claimant had sustained a 7 percent permanent partial 
 
            impairment due to a preexisting condition aggravated by 
 
            delivery of her child and her weight problem.
 
            
 
                 The medical evidence indicates that claimant's back 
 
            problems began after the incident at work.  She had not had 
 
            any problems performing her job duties prior to the paper 
 
            clip incident.
 
            
 
                 Much of claimant's testimony centered around pain she 
 
            feels when exerting herself.  Although pain is a subjective 
 
            complaint, and it would be difficult to assess a great 
 
            amount of industrial disability  due to pain, the evidence 
 
            confirms that claimant has a disk problem centered in the 
 
            low back.
 
            
 
                 After careful consideration of all the applicable 
 
            factors, it is found that claimant has sustained a 25 
 
            percent industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for one hundred twenty-five (125) weeks 
 
            at the workers' compensation rate of one hundred eighty-
 
            three and 37/100 dollars ($183.37) per week beginning July 
 
            10, 1989, the date claimant returned to work.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants are awarded credit for benefits 
 
            previously paid.
 
            
 
                 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 May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            nnMr Channing L Dutton
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr James C Huber
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed May 27, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STELLA FISTER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888021
 
            CHILDRENS HABILITATION        :
 
            CENTER,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained a work-related back injury.  Primary 
 
            employment was in the nurse's aide profession.  Work 
 
            restrictions included no lifting of more than 50 pounds, and 
 
            a 10 percent impairment.
 
            Claimant awarded 25 percent industrial disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
              
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DARWIN OBERENDER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 888049
 
            UNITED TRUCK & BODY COMPANY,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            as a result of an alleged injury occurring on September 1, 
 
            1988.  The record in the proceeding consists of the 
 
            testimony of the claimant, Don Flor, Larry Smith and Steven 
 
            Bombela; and, joint exhibits 1 through 8.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant incurred an injury on September 1, 
 
            1988, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's permanent disability and a September 1, 1988 
 
            alleged work injury;
 
            
 
                 3.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 4.  Whether claimant is entitled to 85.27 medical 
 
            benefits.  The issues are whether the medical treatment and 
 
            services were reasonable and necessary, whether they are 
 
            causally connected to claimant's alleged September 1, 1988 
 
            injury, and whether there was authorization.  The bills in 
 
            dispute are represented by joint exhibit 8.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 39-year-old high school graduate.  His 
 
            only other formal education is appropriate three month 
 
            course in arc welding at an Area 11 school, the course 
 
            having been taken in the 1980's while claimant was working 
 
            for defendant employer.
 
            
 
                 Claimant related the various jobs he had beginning in 
 
            high school up to beginning work for defendant employer for 
 
            the first time around the first part of 1981.  He was hired 
 
            by defendant employer at that time to do body work on semi 
 
            trucks.  Claimant indicated he learned how to do this work 
 
            while working with his father and teaching himself more or 
 
            less by doing this type of work.  Claimant worked for 
 
            defendant employer until some time in 1984.  He described 
 
            the type of work he had to do, his duties, tools he used, 
 
            the nature of his job and what it required as far as his 
 
            body movements, etc.
 
            
 
                 Claimant left defendant employer's employment to work 
 
            for another company in similar type work but more in a 
 
            supervisory capacity.  Claimant did not like this new job 
 
            and the requirements and was rehired by defendant employer 
 
            in 1985 to do auto body work.  Because defendant employer at 
 
            that time had put into existence a department making 
 
            sleepers for trucks, claimant ended up working mainly in 
 
            that department.   Defendant employer indicated this was 
 
            similar to the type of work claimant did when he previously 
 
            worked for defendant employer.  Claimant last worked for 
 
            defendant employer on May 1, 1989.  Although the words 
 
            termination and quitting were used at various times during 
 
            the questions and answers, it was obvious that the claimant 
 
            was terminated from his employment.
 
            
 
                 Claimant described the nature of his alleged September 
 
            1, 1988 injury and how he thought it occurred.  Claimant 
 
            indicated that in the previous August while working on a 
 
            truck installing a sleeper, he had hit his head on the truck 
 
            door which had been left open.  This did not cause a cut but 
 
            he said that was the first indication he began to have pain 
 
            in his neck area.  He indicated that he then notified his 
 
            employer around the first of September in 1988 and made 
 
            arrangements to see a doctor because of the pain becoming 
 
            more severe and affecting his ability to work.  Claimant was 
 
            making $9.50 per hour at the time.
 
            
 
                 Claimant was off work September 15, 1988 through 
 
            January 3, 1989, which amounts to 15.857 weeks for which he 
 
            was paid compensation payments at the rate of $229.78 per 
 
            week.
 
            
 
                 Claimant testified as to the various doctors he saw and 
 
            the treatments and physical therapy he received.  Claimant 
 
            indicated that the physical therapy received in December 
 
            1988 helped more than the earlier treatment from the 
 
            physical therapist, Thomas Bower.  He indicated the later 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            treatment was more elaborate and involved electronic 
 
            stimulation which helped the most.
 
            
 
                 Although there is a document indicating in February 
 
            1989 that claimant was released to return to work, he 
 
            actually did go back to work for defendant employer on 
 
            January 4, 1989, at which time for a short period he was put 
 
            on half days and eventually then after approximately two 
 
            weeks or so went to full time again.  He returned with no 
 
            restrictions (Joint Exhibit 7, page 32).
 
            
 
                 Claimant indicated that when he returned to work his 
 
            pain started to flare up again and it became worse as he 
 
            then eventually began working full time at the similar type 
 
            or same duties as he was doing in September 1988.
 
            
 
                 Claimant indicated that the reason he was terminated in 
 
            May of 1989 was mainly for lateness and absenteeism.  He 
 
            acknowledged that he missed a lot of time and that he had 
 
            this tardiness and lateness problem before his injury in 
 
            which cases he missed work.  He agreed he had a history of 
 
            being late and missing work.  Claimant blamed the 
 
            absenteeism and lateness after his injury at least in part 
 
            due to his injury in that he indicated he was not getting a 
 
            good night's sleep and blamed this on his neck pain.  
 
            Claimant indicated he did receive a verbal warning as to his 
 
            lateness earlier in 1988 prior to his alleged injury (Jt. 
 
            Ex. 7, p. 43).
 
            
 
                 Claimant testified as to the employment he has had 
 
            since he was terminated at defendant employer.  Claimant 
 
            currently is working at Younkers having begun in January 
 
            1992.  His work involves working in the warehouse pricing 
 
            items, filling store orders, opening boxes, marking them 
 
            with stickers and counting out the particular inventory that 
 
            would go to a particular store.  He indicated his lifting 
 
            would involve approximately 50 pounds maximum.  If heavier, 
 
            he has others to help him.  He is making $4.79 per hour.
 
            
 
                 Claimant indicated upon direct examination that in May 
 
            1989 he had done some body work and gave an example working 
 
            on a pickup of his friend who was in no hurry to have it 
 
            done.  He indicated that he ran out of time doing this and 
 
            did not finish it and that he had been working on it for a 
 
            period of five to six months.  He indicated that the reason 
 
            it took him that long was because of his physical medical 
 
            condition and was unable to work on it any length of time.
 
            
 
                 Claimant indicated that he has not had much medical 
 
            treatment since May of 1989.  He said he is not worse but 
 
            actually better today but usually feels something in his 
 
            neck every day.  Claimant indicated that prior to September 
 
            1, 1988, he had no neck problems, never saw doctor regarding 
 
            his neck or shoulders and never hurt nor had he collected 
 
            any amount on workers' compensation prior to that date.
 
            
 
                 Claimant indicated that he is limited in his ability to 
 
            turn his head to the left as much as he used to.  He cannot 
 
            look down for more than 15 or 20 minutes and it hurts to 
 
            reach over his head.  He must watch what he lifts and he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cannot drive a car for a long period of time.  He indicated 
 
            it hurts him to drive on bumpy roads.
 
            
 
                 Claimant was extensively cross-examined.  He indicated 
 
            since January of 1992, he has been a part-time worker to the 
 
            present at Younkers.  He indicated sometimes he gets 40 
 
            hours a week and other times he may not work for a week.  He 
 
            is happy with his current job but not with the pay he is 
 
            receiving, which is $4.79 per hour.
 
            
 
                 Claimant was asked as to his work for Mr. Sweeney who 
 
            is in the plumbing contractor business and for whom he 
 
            worked during a certain period after May 1989.
 
            
 
                 Claimant related working at one job in which he was 
 
            working with concrete and he had to help shovel and 
 
            distribute it as it was being laid and being poured from the 
 
            truck.  This resulted in working approximately three or so 
 
            hours in a row.  Claimant acknowledged that this brought on 
 
            symptoms that were worse than he had three weeks previously 
 
            when he had been terminated at defendant employer.  He said 
 
            the pain also was running down his arm.  He indicated he had 
 
            quit shortly after this as he indicated the pain was the 
 
            worse he had ever had.  Claimant was then off several months 
 
            until he got the cashier job at Amoco.
 
            
 
                 Claimant indicated he wore a TENS unit at one time and 
 
            apparently has it at home but didn't indicate when or how 
 
            often he wears it if at all.
 
            
 
                 Claimant acknowledged that he knew a Mr. Albaugh who at 
 
            one time was his landlord.  He said that he would disagree 
 
            with him if Mr. Albaugh did say that claimant was working on 
 
            something all the time while renting from him.  Claimant 
 
            acknowledged that he can do mechanical work and has replaced 
 
            an engine and does his own maintenance and oil changes.  He 
 
            has three vehicles presently.  Claimant contends that he has 
 
            done no other body work after leaving defendant employer on 
 
            May 1, 1989.
 
            
 
                 Claimant acknowledged that he helped Ed Sweeney for 
 
            whom he had at one time worked.  Mr. Sweeney had feeder 
 
            cattle on the premises that the claimant was renting.  
 
            Claimant indicated that Mr. Sweeney paid claimant's rent for 
 
            him to the landlord in the amount of $200 per month.  
 
            Claimant indicated that he did the chores for Mr. Sweeney 
 
            over a two or three year period, which encompassed a period 
 
            before and after his alleged September 1, 1988 injury.  
 
            Claimant indicated the chores amounted to scooping and 
 
            carrying grain to the feed trough where the cattle eat.  
 
            These were carried in five gallon pails.  He also had to use 
 
            the pitchfork to rake the bales of hay and scoop or throw 
 
            the hay with the pitchfork to the cattle.  He indicated that 
 
            he did this three or four days a week during this period of 
 
            time, sometimes more, sometimes less. Claimant also 
 
            indicated that the most strenuous work he had to do involved 
 
            the cattle and giving medicine to them.  He indicated he 
 
            would have to wrestle the calf and hold them long enough to 
 
            give them a shot.  The calves would weigh approximately 75 
 
            pounds and he would hold them against the building as they 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            were given the shot.
 
            
 
                 Claimant indicated that after he had left defendant 
 
            employer on May 1, 1989, doing these chores never bothered 
 
            him when he was pitching hay to the cattle.  He indicated he 
 
            could control the weight and that the hay was not that 
 
            heavy.  Claimant indicated that the chores took 
 
            approximately one hour in the morning and one hour in the 
 
            evening.
 
            
 
                 Claimant acknowledged that he is presently under 
 
            indictment for possession with intent involving drug 
 
            charges.  Claimant was arrested in 1992.
 
            
 
                 The undersigned might note that he was not impressed 
 
            with certain parts of claimant's testimony.  Claimant on 
 
            many occasions, regardless of who was asking the question, 
 
            took considerable time in answering the questions which 
 
            seemed to be able to be readily answered.  Whether claimant 
 
            was deciding what best answer to give or that this is just 
 
            his style the undersigned is not sure.  There were occasions 
 
            in which claimant did not respond when the question was 
 
            clear and either another question had to be answered or in 
 
            some cases it appeared the attorneys would move on.  It 
 
            seemed like the claimant was downplaying his activities and 
 
            things he did and the extent he did them and the effort 
 
            needed to do various activities notwithstanding his alleged 
 
            injury.
 
            
 
                 Donald Flor, who has worked 27 years for defendant 
 
            employer, knew claimant and indicated he got along with him.  
 
            He has bowled with claimant and was claimant's supervisor 
 
            when claimant worked in the sleeper department at defendant 
 
            employer.  Mr. Flor indicated he knew claimant had other 
 
            activities or work other than what he was doing at defendant 
 
            employer such as doing chores and taking care of cattle near 
 
            Saylorville Lake.
 
            
 
                 Mr. Flor couldn't remember claimant being gone from 
 
            work because of injuries but he said in their type of 
 
            business the employee always has a pain here and there.  
 
            Claimant had mentioned that he had a problem with his neck 
 
            and arms.
 
            
 
                 Larry Smith, owner of defendant employer, testified as 
 
            to the nature of his business.  He testified that claimant 
 
            worked for him two periods and he knows claimant well.  The 
 
            last time claimant worked was 1984 to 1989 when claimant was 
 
            hired back as a body man but actually did work in the 
 
            sleeper division.
 
            
 
                 Mr. Smith indicated claimant had other jobs and duties 
 
            and that the claimant had a rent agreement in which his rent 
 
            was paid to take care of someone's cattle.  He said claimant 
 
            missed a lot of work, would call in sick or indicate that 
 
            the cows got out or claimant would have to leave work 
 
            because he was notified that the cattle had gotten out.  Mr. 
 
            Smith also indicated that people at work would be saying 
 
            things concerning the claimant such as he partied last night 
 
            or rebuilt or put a motor in a vehicle.  Mr. Smith said 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant told him one time he was mending fences late at 
 
            night and the cattle got out.  He said he was off two days 
 
            in a row.  Mr. Smith said claimant was a good worker and he 
 
            wanted to keep him employed as he is a good body man but he 
 
            had to have someone he could rely upon.  He said claimant 
 
            never told him anything as to his neck problems or that his 
 
            arms had tingling in them.  He emphasized he never knew 
 
            claimant was injured until claimant filed his claim.  Mr. 
 
            Smith said he hired a Steven Bombela as controller and to 
 
            take care of problems with employees so that he could devote 
 
            his time to the shop and other items.
 
            
 
                 Steven Bombela testified he works for defendant 
 
            employer as controller and is involved in many other things 
 
            regarding the company, including books, daily operations and 
 
            employee relationship.  Mr. Bombela related claimant's poor 
 
            attendance and lateness in that he would not call in if he 
 
            wasn't coming in or if he was going to be late.  Sometimes 
 
            when he did call, he indicated that the cattle were lost or 
 
            he had to get them or that he didn't get the chores done.  
 
            Mr. Bombella indicated that claimant sometimes was gone up 
 
            to three days.
 
            
 
                 Mr. Bombela referred to joint exhibit 7, page 43, the 
 
            notation concerning the February 29, 1988 late warning to 
 
            claimant.  He, too, emphasized that claimant was a good 
 
            worker, and they wanted him there and that was the reason 
 
            for tolerating his problems but they couldn't get claimant 
 
            to come to work on time and be there so they could rely upon 
 
            him.
 
            
 
                 Mr. Bombela said claimant did say he was having 
 
            physical problems when he was rebuilding a truck or doing 
 
            chores and that his neck was sore when he got out of bed.
 
            
 
                 Mr. Smith said claimant was terminated in May 1989.  He 
 
            indicated the company could no longer tolerate claimant's 
 
            absenteeism.  He said claimant's tardiness and work attitude 
 
            would have an effect on the other employees ff the company 
 
            continued to tolerate him.  Mr. Bombela indicated that if 
 
            claimant came back to work on a steady basis he would not 
 
            have been fired.
 
            
 
                 Looking at joint exhibit 1, pages 1 through 9, it 
 
            appears that claimant did incur an injury that arose out of 
 
            and in the course of his employment and that by January 20, 
 
            1989, claimant had called the doctor indicating he was ready 
 
            to return to work on a half day basis.  The parties had 
 
            agreed that claimant returned to work on January 4, 1989.  
 
            On February 8, 1989, K. Grauerholz, M.D., noted he was to 
 
            write a release for claimant to return to work full time 
 
            (Jt. Ex. 1, p. 11).
 
            
 
                 Joint exhibit 7, page 25, is a letter from David J. 
 
            Boarini, M.D., in which he indicates in a letter of December 
 
            8, 1988, that he thought claimant had a mild cervical 
 
            radiculopathy which is not work related.
 
            
 
                 Claimant contends he has a permanent disability.  There 
 
            is no evidence in the record that claimant has any permanent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            restrictions or limitations as to his work or that he has 
 
            any functional impairment.  There is nothing in the record 
 
            that causally connects claimant's alleged medical condition 
 
            or disability to a September 1, 1988 cumulative work injury.  
 
            In fact, taking claimant's testimony as a whole, it appears 
 
            possible that claimant's original problem developed from 
 
            hitting his head approximately one-half months prior to 
 
            September 1, 1988, thereby, resulting in a traumatic injury 
 
            rather than cumulative.  Notwithstanding that, the 
 
            undersigned does not find that there is any objective or 
 
            sufficient evidence for claimant to carry his burden to show 
 
            that he has a permanent injury.
 
            
 
                 Although it had to be brought out on cross-examination 
 
            and it is also evident by its lack of mention in claimant's 
 
            medical records, it is obvious from the testimony that 
 
            claimant was involved in other outside work doing chores and 
 
            handling cattle.  Even though he seemed to downplay this, it 
 
            would appear he was more involved than he wanted to relate 
 
            at the hearing.  The various actions and activities he had 
 
            to do in connection with watching cattle would indicate that 
 
            those things could aggravate or cause injuries in and of 
 
            themselves.  Of particular note is claimant indicating that 
 
            approximately once a week he had to wrestle 75 pound calves 
 
            in order to give them a shot.  He is also carrying five 
 
            gallon pails of feed and pitching hay as feed to the cattle.   
 
            There is even mention that hogs were involved at one time 
 
            even though claimant did not mention that at all.
 
            
 
                 It would appear that claimant is doing more auto body 
 
            work on his own, whether it be helping himself or his 
 
            friend, than he wants to relate.
 
            
 
                 Joint exhibit 7 reflects claimant's lack of motivation, 
 
            at least as to trying to be timely and put in the time when 
 
            he was working for defendant employer.  His firing on May 1, 
 
            1989 seemed to be based his attendance record and the 
 
            undersigned does not believe it was the result of his 
 
            alleged injury.  Claimant had been given warnings prior to 
 
            that date.  Jt. Ex. 7, pages 56-57)
 
            
 
                 The undersigned does find that claimant did incur a 
 
            temporary total disability on September 1, 1988, which 
 
            resulted in claimant being temporarily off work because of 
 
            said injury beginning September 5, 1988 through January 3, 
 
            1989, involving 15.857 weeks.  The defendants have paid 
 
            these benefits at $229.78.  The undersigned finds that this 
 
            temporary total disability period was caused by a September 
 
            1, 1988 injury, but as further indicated above, this 
 
            temporary injury did not result in any permanency nor is 
 
            there sufficient evidence to show that claimant's current 
 
            alleged problems are causally connected to any September 1, 
 
            1988 injury.
 
            
 
                 As to the 85.27 medical benefits and the dispute 
 
            involving certain medical bills as set out in joint exhibit 
 
            8, the undersigned finds that all those bills were incurred 
 
            after September 1, 1988, and mainly prior to the end of 
 
            claimant's temporary total disability of January 3, 1989, 
 
            except for the TENS patches on March 19, 1992, in the amount 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of $18.40 and the $723 Abbey/Foster bill.  The drug bills 
 
            appear to be prior to February 8 when the doctor said 
 
            claimant could return to work (Jt. Ex. 1, p. 11).  The 
 
            undersigned finds that defendants shall pay all of those 
 
            bills set out in joint exhibit 8 except the $18.40 and the 
 
            $723 bill of an Abbey/Foster.  There is no bill attached for 
 
            Abbey/Foster and the undersigned does not know what that 
 
            relates to or what is involved in that charge or when it was 
 
            incurred.  Therefore, the claimant has not proven that this 
 
            bill is causally connected to claimant's September 1, 1988 
 
            injury.  Therefore, defendants shall pay claimant for those 
 
            expenses in a net total amount of $1,209.72 for 
 
            reimbursement of claimant's medical bills as represented on 
 
            joint exhibit 8.  In summary, claimant takes nothing further 
 
            in these proceedings other than having the medical bills and 
 
            mileage paid as referred to above.  Claimant is entitled to 
 
            no permanent partial disability benefits and has already 
 
            been paid for all temporary total disability benefits for 
 
            which he is entitled.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 1, 
 
            1988, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            1, 1988, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 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 
 
                 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 
 

 
            
 
            Page   9
 
            
 
            
 
                 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 temporary total disability that 
 
            arose out of and in the course of his employment on 
 
            September 1, 1988.  This injury caused claimant to incur a 
 
            period of temporary total disability beginning September 15, 
 
            1988 through January 3, 1989, encompassing 15.857 weeks at 
 
            $229.78 per week.
 
            
 
                 Claimant did not incur any permanent disability as a 
 
            result of a September 1, 1988 work injury.
 
            
 
                 Claimant is entitled to have paid or be reimbursed for 
 
            any bills paid that are represented in joint exhibit 8 
 
            except the $18.40 bill for TENS patches and the Abbey/Foster 
 
            bill in the amount of $723.  Defendants therefore are 
 
            obligated to pay $1,209.72 of the bills represented on joint 
 
            exhibit 8.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay one thousand two hundred nine 
 
            and 72/100 dollars ($1,209.72) of claimant's medical bills 
 
            referred to above and as represented on joint exhibit 8.
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 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 September, 1992.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr David Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr James C Huber
 
            Attorney at Law
 
            500 Liberty Bldg
 
            418 6th Ave
 
            Des Moines, IA 50309-2421
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                             5-1100; 5-1108
 
                                             5-1402; 5-2503
 
                                             Filed September 3, 1992
 
                                             Bernard J. O'Malley
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DARWIN OBERENDER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 888049
 
            UNITED TRUCK & BODY COMPANY,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1402
 
            Claimant took nothing further from this proceeding.  
 
            Claimant incurred a temporary total disability period of 
 
            15.857 weeks for which he was already paid, which arose out 
 
            of and in the course of his employment and which work injury 
 
            caused claimant's temporary total disability.
 
            
 
            5-2503
 
            Claimant recovered part of his medical expenses.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 5-1803; 5-2500
 
                      Filed July 23, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY SPROUSE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 888072
 
            vs.                           :                880941
 
                                          :
 
            CHURCHILL TRUCK LINES,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1803
 
            Found 51-year-old claimant's March 1, 1988 work injury 
 
            caused claimant to incur a 30 percent industrial disability, 
 
            several healing periods and certain work restrictions.
 
            
 
            5-1108
 
            Found claimant's September 21, 1988 alleged work injury was 
 
            not a new separate injury, but was an aggravation and 
 
            sequela of her March 1, 1988 injury.  All compensation 
 
            entitlement was attributed to March 1, 1988 injury.
 
            
 
            5-2500
 
            Claimant allowed medical benefits.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
		                      :
 
            RANDY SNIDER,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 888077
 
            SUPER VALU STORES, INC.,  :
 
		                      :        A P P E A L
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 25, 1991 is affirmed and adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis.
 
            Claimant failed to prove by a preponderance of the evidence 
 
            a causal connection between his low back injury on August 8, 
 
            1988 and his current condition.  Michael J. Makowsky 
 
            testified that it was possible that claimant's herniated 
 
            disc diagnosed in August 1990 was causally related to 
 
            claimant's August 8, 1988 work-related injury.  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955).  Claimant asserts that he was not 
 
            afflicted with low back pain prior to his August 8, 1988 
 
            work injury and continued to be afflicted with the same 
 
            condition afterward.  Therefore, sufficient evidence exists 
 
            to warrant an inference that claimant's present condition 
 
            resulted from his August 8, 1988 work injury.  In a letter 
 
            dated April 20, 1990, Dr. Makowsky opined that claimant 
 
            reaggravated his preexisting back condition.  (Claimant's 
 
            exhibit 1, p. 2)  This reaggravation occurred after he quit 
 
            working for the defendant-employer.  Defendants are not 
 
            liable for claimant's low back problems as Dr. Makowsky 
 
            testified to a number of possible causes of claimant's low 
 
            back problems other than claimant's August 8, 1988 work 
 
            injury.  Claimant failed to prove by a preponderance of the 
 
            evidence that his August 8, 1988 work-related injury caused 
 
            his current back condition.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Administrative agencies are not bound by the technical rules 
 
            of evidence.  "Findings shall be based upon the kind of 
 
            evidence on which reasonably prudent persons are accustomed 
 
            to rely for the conduct of their serious affairs, and may be 
 
            based upon such evidence even if it would be inadmissible in 
 
            a jury trial."  Iowa Code section 17A.14(1).  Evidence that 
 
            claimant had been convicted of burglary in the second degree 
 
            in 1980 is relevant and was properly admitted into evidence.  
 
            On appeal, however, little weight is given to the conviction 
 
            as it occurred ten years prior to the hearing.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309-2421
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RANDY SNIDER,	      :
 
                       		      :
 
                 Claimant, 	      :
 
                      		      :	
 
	            vs. 	      :       File No. 888077
 
                      		      :
 
            SUPER VALUE STORES, INC., :         A P P E A L
 
                      		      :
 
                 Employer, 	      :       D E C I S I O N
 
                      		      :
 
           		 and          :
 
                      		      :
 
            LIBERTY MUTUAL INSURANCE CO.,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed June 25, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY SNIDER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 888077
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            SUPER VALU STORES, INC.,      :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the July 25, 
 
            1990 petition of claimant Randy Snider against his employer, 
 
            Super Valu Stores, Inc., and its insurance carrier, Liberty 
 
            Mutual Insurance Company.  Claimant alleges that he 
 
            sustained a work injury to his back on August 8, 1988, and 
 
            that he has sustained permanent disability as a result.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            June 5, 1991.  The record consists of claimant's exhibit 1 
 
            (including deposition exhibits 1 through 8), defendants' 
 
            exhibits A through D and the testimony of claimant, Scott 
 
            Foster and Pauline Snider.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Super Valu Stores, Inc., on August 8, 1988, and that 
 
            the injury caused temporary disability from August 9 through 
 
            August 20, 1988.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and any subsequent permanent disability;
 
            
 
                 2.  The extent of claimant's permanent disability, if 
 
            any; and,
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            finds:
 
            
 
                 Randy Snider, 29 years of age at hearing, began his 
 
            employment with Super Valu Stores, Inc., as a warehouse 
 
            order filler in January 1987.  He previously worked as a 
 
            concrete worker, general laborer, concrete block worker and 
 
            warehouse worker, but states that he was afflicted with no 
 
            physical problems prior to employment with defendant.
 
            
 
                 Claimant has a criminal record.  In 1984, he was 
 
            convicted of driving while intoxicated; in 1986, he was 
 
            convicted of possession of a controlled substance 
 
            (marijuana); and, in 1980, he was convicted of burglary in 
 
            the second degree.  Although strict rules of evidence are 
 
            not applicable in an administrative proceeding, Iowa Rule of 
 
            Evidence 609 provides guidance in weighing the probative 
 
            value of these convictions.  Rule 609(a) provides that 
 
            evidence that the witness has been convicted of a crime 
 
            involving dishonesty or false statement is admissible if the 
 
            crime constituted a felony, aggravated misdemeanor or other 
 
            crime punishable by imprisonment in excess of one year and 
 
            the probative value of admitting the evidence outweighs its 
 
            prejudicial effect.  Rule 609(b) provides that evidence of a 
 
            conviction is not admissible if more than ten years has 
 
            elapsed since the date of conviction or the release of the 
 
            witness from confinement imposed for that conviction, 
 
            whichever is the later date.  See also State v. Roth, 403 
 
            N.W.2d 762 (Iowa 1987); State v. Hackney, 397 N.W.2d 723 
 
            (Iowa 1986).  Claimant's convictions for drunk driving and 
 
            possession of marijuana do not involve dishonesty and have 
 
            no impact on his credibility.  Under Iowa Code section 
 
            713.5, burglary in the second degree is a Class C felony.  
 
            Under Iowa Code section 902.9(3), a Class C felon shall be 
 
            confined for no more than ten years.  Claimant's conviction 
 
            was more than ten years prior to trial, but not the 
 
            expiration of his two-year probation, arguably the 
 
            functional equivalent of confinement.  Claimant also gave 
 
            somewhat inconsistent testimony in his deposition, as 
 
            opposed to his trial testimony, with respect to his ability 
 
            to perform work for a siding company; he averred that he 
 
            could perform the work in his deposition, but indicated an 
 
            inability to do so at trial.  He also gave testimony in at 
 
            least one respect that was clearly shown to be erroneous:  
 
            He alleges that he had no problem performing his warehouse 
 
            duties with defendant until after the subject work injury 
 
            (in August 1988), whereas he actually received his first 
 
            warning for low productivity on April 20, 1988, nearly four 
 
            months earlier.  If believed, his testimony on this point 
 
            would tend to show greater industrial disability, all to his 
 
            benefit, since it would give rise to the implication that 
 
            the work injury caused his productivity problems.  
 
            Considering all these factors, it is found that claimant is 
 
            not a reliable witness.
 
            
 
                 On August 8, 1988, claimant injured himself while 
 
            loading turkeys in the freezer department.  Something 
 
            "popped" in his back while he was bending under a pallet, 
 
            lifting a box of turkeys weighing approximately 80 pounds.  
 
            He was treated conservatively for a diagnosed muscle strain 
 
            and unsuccessfully released to temporary light duty 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            scrubbing gas tanks for half a day, then to clerical work 
 
            until the last week of September 1988.  He then quit 
 
            employment to attend DeVry Institute of Technology in 
 
            Illinois.  While in school, claimant did no heavy work and 
 
            sought no medical attention, although he complains of 
 
            continued minor back pain.
 
            
 
                 During his early medical treatment, claimant underwent 
 
            no diagnostic procedures such as computerized axial 
 
            tomography or magnetic resonance imaging that might have 
 
            conclusively demonstrated the existence of a herniated disc.
 
            
 
                 Claimant returned to Des Moines, Iowa in May 1989 to 
 
            enroll in the National Education Center, through which he 
 
            eventually took a part-time position for Library Binding 
 
            Service, Inc., in February 1990.  This job, manufacturing 
 
            book covers, required frequent lifting of 45-50 pounds.  
 
            Claimant testified that the exertion re-awakened his back 
 
            symptoms beginning the first day and that he worked only two 
 
            weeks in the job.  As of this time, claimant had no 
 
            complaints of radiating pain to the left hip or leg.  The 
 
            absence of radiating symptoms had been specifically charted 
 
            on August 26, 1988 by David T. Berg, D.O., during claimant's 
 
            early treatment.
 
            
 
                 Through his attorney and defendants, claimant shortly 
 
            thereafter made an appointment to see Michael J. Makowsky, 
 
            M.D., on April 20, 1990.  After these arrangements were 
 
            made, but before the appointment, claimant suffered a fall 
 
            on April 7 or April 8 when a ladder collapsed.  Claimant 
 
            alleges that this fall injured his right knee, but not his 
 
            back.  Pauline Snider, his wife, agreed that he did not 
 
            complain of back pain, but only knee pain.
 
            
 
                 After seeing claimant on April 20, 1990, Dr. Makowsky 
 
            reported that claimant had already begun working for 
 
            Superior Siding (according to claimant, general work 
 
            attendant to application of house siding) and was not 
 
            complaining of any significant pain, self-described as less 
 
            than one on a ten-point scale and non-radiating.  Dr. 
 
            Makowsky reported his opinion that "the recent episode is 
 
            probably a reaggravation of the pre-existing back 
 
            condition."  Dr. Makowsky felt claimant had muscle strain, 
 
            not a herniated disc.  Mr. Snider was released to return as 
 
            needed.
 
            
 
                 While working for Superior Siding, claimant noted that 
 
            his back continued to hurt with lifting and he began 
 
            developing pain in the left hip joint and leg.  He returned 
 
            to see Dr. Makowsky on August 22.  Magnetic resonance 
 
            imaging of the lumbar spine interpreted by Robert M. 
 
            McCleeary, M.D., showed mild left lateral herniation of the 
 
            L5-S1 disc on axial images, but this was not clearly 
 
            identified on sagittal views.  Accordingly, Dr. McCleeary 
 
            recommended a confirmatory test such as myelography before 
 
            surgery was considered.  He also noted mild degenerative 
 
            disc disease at L4-5 with slight desiccation of the nucleus 
 
            pulposis and minimal generalized bulging of that disc 
 
            without evidence of neural compression.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Dr. Makowsky thereupon referred claimant to Dan 
 
            McGuire, M.D., for a surgical consultation.  Dr. McGuire 
 
            apparently did not recommend surgery, although his letter of 
 
            September 12, 1990 is unclear.  He saw "nothing of 
 
            importance" on the MRI, although he agreed herniation of 
 
            L5-L1 was present.  Yet, Dr. McGuire reported that claimant 
 
            had "absolutely no leg symptoms," clearly a misunderstanding 
 
            on his part, and for that reason did not believe the disc 
 
            was the source of claimant's problems.  He felt mild 
 
            degenerative changes at L4-5 could be the source of chronic 
 
            back pain, but that this was highly unlikely.
 
            
 
                 Dr. Makowsky thereafter treated claimant with a course 
 
            of epidural injections, but the series was not completed 
 
            when defendants denied liability and ceased authorization 
 
            for treatment.
 
            
 
                 Claimant also worked as a roofer in October 1990 and 
 
            again in May 1991, after recuperating from knee surgery 
 
            related to his April 1990 fall.  He worked only three weeks 
 
            on the latter occasion and redeveloped back pain, along with 
 
            continued problems in the right (surgical) knee.  He was 
 
            still off work at the time of hearing, but intended to 
 
            commence a course in real estate the following week.
 
            
 
                 Dr. Makowsky testified by deposition on January 7, 
 
            1991.  With respect to the "preexisting back condition" 
 
            referred to in his letter of April 20, 1990, he testified:
 
            
 
                 A.  I was referring to the injury that had 
 
                 occurred back when he lifted the box of turkeys at 
 
                 Super Valu.  Again, he is telling me that this 
 
                 pain is similar to what he had before, and from 
 
                 what I could tell, it was similar.
 
            
 
                 Q.  The fact that more than a year and a half 
 
                 after that injury he was still experiencing pain 
 
                 when he was doing heavy lifting, does that--would 
 
                 that indicate to you that any permanent injury had 
 
                 been sustained back in August of 1988?
 
            
 
                 A.  "Any permanent injury."  That's hard to 
 
                 answer.  It would sound that his symptoms at least 
 
                 occurred for at least a year and a half.  Again, 
 
                 that's not unusual, and not always is there a 
 
                 permanent injury sustained from a back strain.
 
            
 
                 Q.  As of the time you saw him in April of 1990 
 
                 with the complaints he had at that time, did you 
 
                 put any restrictions on his physical activities?
 
            
 
                 A.  No.  Like I said, I was pretty unimpressed by 
 
                 his symptoms at that time, and I had seen him and 
 
                 really released him.  It was only supposedly a 
 
                 one-time evaluation.  I didn't plan on seeing him 
 
                 again.  At least I don't recall I did.
 
            
 
            (Dr. Makowsky deposition, page 13, line 18 through page 14, 
 
            line 15)
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Dr. Makowsky further noted that claimant's symptoms 
 
            were substantially increased when seen again in August 1990, 
 
            but did not recall history of any specific incident, 
 
            although he did remember that claimant had performed a great 
 
            deal of lifting in his work for Superior Siding.  It was in 
 
            August 1990 that claimant first made note of radiating pain 
 
            in the left hip and leg.
 
            
 
                 On the crucial issue of whether the herniation was 
 
            caused by the original work injury, Dr. Makowsky testified:
 
            
 
                 Q.  Doctor, did you form an opinion at that time 
 
                 as to the cause of the herniated disk?
 
            
 
                 A.  That's hard to answer.  Obviously, I was 
 
                 thinking back to his original injury that occurred 
 
                 at Super Valu, but I also considered that perhaps 
 
                 this herniation occurred as a result of some of 
 
                 his more recent activities, either at the library 
 
                 binding company or at the siding company that he 
 
                 worked for.
 
            
 
            (Dr. Makowsky deposition, page 19, lines 3 through 11)
 
            
 
                 He agreed that the subject injury was capable of 
 
            causing a herniated disc and noted that a herniated disc 
 
            does not necessarily cause radiating pain at first.  The 
 
            disc was compatible with the injury, but, on the other hand, 
 
            people can develop herniated discs simply by sneezing.  Dr. 
 
            Makowsky did not testify to more than a possibility that the 
 
            work injury caused the herniated disc:
 
            
 
                 Q.  When does a pain in the leg, such as in the 
 
                 left thigh, develop, at what point in time?
 
            
 
                 A.  I don't understand the question.
 
            
 
                 Q.  It's too vague and general a question.
 
            
 
                 Does the pain in a leg usually develop at a time 
 
                 that there is an impingement on the nerve root?
 
            
 
                 A.  Usually.
 
            
 
                 Q.  And that may or may not coincide with the 
 
                 herniation of the disk?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  If one didn't have a herniated disk before, 
 
                 and all of a sudden developed left leg pain, that 
 
                 would probably be a good bet that that was the 
 
                 time the herniation of the disk occurred?
 
            
 
                 A.  Would it be a good bet?
 
            
 
                 Q.  A good guess that that's when it occurred?
 
            
 
                 A.  Usually, but it's not common to--not to see 
 
                 that.  I think generally you're correct; that if 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 someone developed pain down their left leg, you 
 
                 would assume that's when the herniation occurred, 
 
                 but to say is it always that way, I couldn't 
 
                 answer that.
 
            
 
                 Q.  Can a person have a herniated disk and then 
 
                 aggravate that condition such that they herniate 
 
                 it even more?
 
            
 
                 A.  Certainly.  That's in reference to bulging 
 
                 disks.  Often we see that.  Someone comes in with 
 
                 pain in their back, we do an MRI, and we see some 
 
                 swelling of disks.  We try to restrict their duty; 
 
                 but if they went back to a risky job, it's not 
 
                 unusual to see that bulging disk then herniate and 
 
                 then develop symptoms.
 
            
 
                 Q.  Can an individual have a slightly herniated 
 
                 disk that causes occasional mild back discomfort, 
 
                 engage in some activity that aggravates the 
 
                 condition, makes it worse, and then develop that 
 
                 left thigh pain?
 
            
 
                 A.  That's not uncommon.
 
            
 
            (Dr. Makowsky deposition, page 34, line 1 through page 35, 
 
            line 13)
 
            
 
                 And:
 
            
 
                 Q.  Based on the history that was given to you, is 
 
                 it your opinion that the increase in the back pain 
 
                 symptoms and the new symptom in the left leg were 
 
                 the result of some aggravation that had occurred 
 
                 since you last saw him in April of 1990?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  When you saw Mr. Snider in April of 1990, he 
 
                 did not need any treatment, is that correct?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  He did not have any limitations on him at that 
 
                 time?
 
            
 
                 A.  No, he did not.
 
            
 
                 Q.  You would not have put any restrictions on him 
 
                 at that time?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  Could he have engaged in an occupation of 
 
                 heavy lifting at that time?
 
            
 
                 A.  From--yes, from what I knew at that time.
 
            
 
            (Dr. Makowsky deposition, page 38, line 14 through page 39, 
 
            line 6)
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The gist of Dr. Makowsky's testimony on causation was 
 
            summarized as follows:
 
            
 
                 Q.  As I understand your testimony here today, Dr. 
 
                 Makowsky, you really can't say with any degree of 
 
                 certainty when the herniated disk occurred, is 
 
                 that correct?
 
            
 
                 A.  I think that's fair to say, yes.
 
            
 
                 Q.  And certainly it's possible that it could have 
 
                 occurred in August of 1988 when he had his 
 
                 original injury, is that correct?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  It's also possible that it could have occurred 
 
                 subsequent to that time when he worked for the 
 
                 library binding company and reported an increase 
 
                 in symptoms, is that correct?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  It's also possible it could have occurred in 
 
                 1990 when he worked for the siding company and 
 
                 reported an increase in symptoms from lifting?
 
            
 
                 A.  It's possible, yes.
 
            
 
                 Q.  And he has, in his deposition, I believe, 
 
                 testified that he was required to lift up to 100 
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 pounds at the siding company.  Is that type of 
 
                 activity something that could cause a herniated 
 
                 disk?
 
            
 
                 A.  Yes.
 
            
 
            (Dr. Makowsky deposition, page 40, line 16 through page 41, 
 
            line 14)
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury as he alleges that caused temporary disability.  
 
            They disagree as to whether the work injury caused permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 8, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 There is a possibility that claimant's herniated disc 
 
            and resultant permanent disability is causally related to 
 
            the work injury.  However, on this record, it cannot be said 
 
            that a probability of that causal nexus exists.  The only 
 
            expert opinion of record is that of Dr. Makowsky.  His 
 
            opinion is of a possibility, but not a probability of the 
 
            necessary causal relationship.  Rather, it appears more 
 
            likely that the onset of radiating leg pain (while claimant 
 
            was working for Superior Siding) marked the onset of the 
 
            disc herniation at L5-S1.  Claimant points out that expert 
 
            testimony of a possible causal relationship coupled with lay 
 
            testimony that claimant was not afflicted with the injurious 
 
            condition prior to the accident and continued to be 
 
            afflicted with the same condition afterwards is sufficient 
 
            basis to warrant an inference that claimant's present 
 
            physical condition resulted from the injury.  Rose v. John 
 
            Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  
 
            However, this rule is not of direct applicability here.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Claimant's condition is now not the same as it was following 
 
            the injury, in that his pain is worse and, in August 1990, 
 
            became radiating to the left lower extremity.  This pain 
 
            developed approximately two years after the injury and after 
 
            claimant engaged in strenuous and heavy work for a binding 
 
            company and a siding company.  In addition, claimant 
 
            suffered a severe fall that resulted in a surgical repair of 
 
            his knee.  While claimant professes to be unaware of any 
 
            specific back injury following the admitted work injury of 
 
            1988, it has been noted that the word of this convicted 
 
            burglar is unreliable.
 
            
 
                 No permanent medical restrictions were suggested 
 
            earlier than August 1990.  The restrictions suggested by Dr. 
 
            Makowsky relate to claimant's present condition, not his 
 
            condition as it existed following the work injury.  Claimant 
 
            has failed to meet his burden of proof in establishing a 
 
            causal relationship between the original work injury and his 
 
            current condition, apparently including a herniated disc at 
 
            L5-S1.  Other issues are accordingly rendered moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. R. Ronald Pogge
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40; 3700
 
                           Filed June 25, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RANDY SNIDER,  :
 
                      :
 
                 Claimant, :
 
                      :         File No. 888077
 
            vs.       :
 
                      :      A R B I T R A T I O N
 
            SUPER VALU STORES, INC., :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to prove his present disability was causally 
 
            related to the stipulated work injury.
 
            
 
            3700
 
            Iowa Rule of Evidence 609 (impeachment by prior criminal 
 
            record) did not operate to exclude evidence in an 
 
            administrative proceeding, but was used as guidance in 
 
            weighing probative value of evidence.