BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ EDWARD R. THOMAS, Claimant, vs. File No. 888727 KENNETH HANSEN d/b/a HANSEN & SONS WELDING, A P P E A L Employer, D E C I S I O N and LEMARS MUTUAL INSURANCE, 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 February 28, 1991 is affirmed and is adopted as the final agency action in this case. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sam S. Killinger Attorney at Law 300 Toy Nat'l Bank Bldg. Sioux City, Iowa 51101 Mr. Joe Cosgrove Attorney at Law 400 Frances Bldg. Sioux City, Iowa 51101 9998 Filed November 17, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EDWARD R. THOMAS, Claimant, vs. File No. 888727 KENNETH HANSEN d/b/a HANSEN & SONS WELDING, A P P E A L Employer, D E C I S I O N and LEMARS MUTUAL INSURANCE, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 28, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : EDWARD R. THOMAS, : : Claimant, : : vs. : : File No. 888727 KENNETH HANSEN d/b/a HANSEN : & SONS WELDING, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LEMARS MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ ___ This is a proceeding in arbitration brought by the claimant, Edward R. Thomas, against Kenneth Hansen d/b/a Hansen & Sons Welding (herein called Hansen), employer, and LeMars Mutual Insurance Company, insurance carrier, identified as defendants, to recover benefits as result of an alleged injury occurring on September 5, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa on November 28, 1990. A first report of injury was filed October 19, 1989. The record consists of testimony from the claimant; Leo Morgan; Richard Ostrander; Kenneth Hansen; Roger Bailey; and, William Engert; claimant's exhibits 1 through 18; defendants' exhibits A through L. The defendants raised objections to claimant's exhibits 9, 14, 16, and 18. These objections are overruled, and the exhibits were considered as part of the evidence. issues Pursuant to the prehearing order and the stipulations of the parties at the hearing, the parties present the following issues for resolution: 1. Whether an employer/employee relationship existed between claimant and employer at the time of the alleged injury; 2. Whether claimant sustained an injury on September 5, 1987 which arose out of and in the course of his employment; 3. Whether claimant is entitled to weekly compensation for temporary total disability or healing period; Page 2 4. Whether claimant is entitled to weekly compensation for permanent disability; 5. Claimant's rate of weekly benefits; 6. Whether claimant is an odd-lot employee. The parties have stipulated, for the purposes of his workers' compensation rate, that claimant is married and has three (3) exemptions. The parties have also stipulated that claimant has incurred, to date, $14,752.17 in medical bills, and that he is entitled to Iowa Code section 85.27 benefits if he prevails in this action. At the hearing, claimant raised the issue of whether the defendants are entitled to indemnity pursuant to Iowa Code section 85.22(1) from claimant's settlement with a third party if claimant prevails in the workers' compensation proceedings. This issue, however, was not listed as an issue on the hearing assignment order and, accordingly, the undersigned is without jurisdiction to consider it. See, Joseph Presswood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986) holding an issue not noted on the hearing assignment order is an issue that is waived. However, the undersigned reviewed the third party settlement agreement (which was an exhibit received into evidence) and finds the order, signed on April 14, 1990 by the industrial commissioner, allows credit to the workers' compensation defendants. There is no issue with respect to the settlement matter. findings of fact The undersigned deputy, having heard all of the testimony and having reviewed all of the exhibits finds the following facts: At the time of the hearing, claimant was 37 years old. He spent most of his grammar school years, and all of his junior high and high school educational in boarding schools. Upon graduation from high school in 1973, claimant attended a vocational school in Pipestone, Minnesota. After five months, claimant, due to financial reasons, left the school and became employed in the construction field. He was a general laborer. Seven months later, claimant began classes at Watertown Vocational School, but again had to curtail his education for financial reasons. He became a laborer in the construction field, where he was paid minimum wage. At the end of 1974, claimant attended classes at Dakota State College in Madison, South Dakota. Claimant spent one and one-half years at the college, and then secured employment in the construction field again. In 1978, claimant enlisted in the Marine Corp, served three years, and was honorably discharged with a Good Conduct Medal. Page 3 In 1981, claimant moved to Macy, Nebraska and obtained work with Omaha Tribe of Nebraska as a hog herdsman. In this position, he had total responsibility for 50 hogs, and cared for them from farrow through market. After one and one-half years, claimant resigned his position as hog herdsman, and performed carpentry work with Swannenbeck Construction. He worked for this company for approximately two or three months, and then worked for a packaged liquor store for two to three months. In 1985, claimant started his own business called S & T Contractors. In this capactiy, he performed a myriad of duties, including carpentry and masonry work. In August 1987, claimant spoke with Leo Morgan about an employment opportunity at the IBP plant in Denison, Iowa. According to claimant, Morgan offered him a full-time position for the next year. Morgan told claimant he would be paid $10.00 an hour, and represented to claimant that he (Morgan) was affiliated with defendant, Hansen and his partner, Mr. Neddermeyer. On Saturday, September 5, 1987 Morgan arrived at claimant's home and drove claimant to the IBP plant in Denison, Iowa. On the job site, claimant was instructed to move various materials into the plant. Later, he was instructed to stand on an I-beam and pull conduit around the ceiling of the plant. Conduit is a pipe that wire or water goes through, and is hung on carriers with clips that fasten it to the ceiling. The I-beam claimant was standing on was approximately 12-15 feet off of the ground. As claimant was trying to pull the conduit, he would have to walk along the I-beam to open the clips so that the conduit could be pulled through easily. He would then walk back across the I-beam and continue to pull the conduit. Claimant was injured when he slipped, fell backwards off of the beam, and landed on the floor. Claimant was taken by ambulance to the Crawford County Memorial Hospital in Denison, Iowa. He was ultimately transferred to the St. Lukes Regional Medical Center in Sioux City, Iowa, and was treated by W. O. Samuelson, M.D, an orthopaedic surgeon. Dr. Samuelson treated claimant from September 5, 1987 through September 7, 1990. On September 5, 1987, Dr. Samuelson performed two operational procedures on claimant: an open reduction internal fixation subcapital fracture; and, a closed reduction right distal radius and ulna. The operative record describes the procedures: At this time the right flank, buttock and thigh were shaved and prepped with betadine soap and solution. He was then draped in a routine manner and a lateral approach to the proximal femur was Page 4 then carried out. Subcutaneous tissue was sharply dissected on the tensor fascia lata which was split with a Mayo scissors and the posterior aspect of the vastus lateralis fascia was then incised and lateral aspect of the femur was then exposed. A drill bit was used to place the initial placement for the guide pin which was then inserted into the femoral neck and femoral head. Once this was completed a reamer was used to ream into the femoral head a 100 millimeter cancellous screw was then chosen and then this was placed after 1st tapping with the tap. Once this was completed a 2 hole side-plate was then inserted onto the shaft of the femur and each screw hole was then filled with a screw which was 1st drilled, measured and placed. Once this was completed and the compression screw inserted into the lag-screw an additional 6.5 cancellous screw was then inserted above the compression screw to add additional fixation and prevent rotation of the subcapital fracture. .... This was an 80 millimeter 6.5 cancellous screw. Once this was completed it was verified with plain x-rays and at this point the wound was 1st irrigated with bacteriostatic saline and the tensor fascia lata was reapproximated with #1 Vicryl interrupted figure of 8 sutures. Ahemovac drain was left beneath the tensor vastus latta and superficial tensor vastus latta. Subcutaneous tissue was reapproximated with 2-0 Vicryl interrupted simple sutures. The skin was reapproximated with staples. The hemovacs were connectedc to hemovac drainage and a zeroform dressing and fluffs with Webril was then applied along with elastiplast and 2 inch adhesive tape. At this point the right wrist was then manipulated while still under general anesthesia and 1st the deformity was increased and then reduced and a long arm cast was then placed. This was verified by AP and lateral x-rays showing internal reduction of the fracture fragments. Once this was completed, anesthesia was terminated and the patient was transferred to the intensive unit for recovery. (Claimant's Exhibit 1) Post operatively, claimant progressed well, although Dr. Samuelson on several occasions noted possible avascular necrosis. On August 8, 1988, claimant was again admitted to St. Luke's Regional Medicial Center for removal of the hardware previously placed in his upper right leg/hip, and for decompression coring of the femoral neck and head. The procedure is explained as follows: Page 5 Edward Thomas is a 35-year-old white male carpenter who fell from a scaffling in September of '87 sustaining a displaced Graden III subcapital fracture of the right hip and a distal radius fracture which was treated with open reduction, internal fixation. He subsequently went on to have a vascular necrosis of right femoral head and because of this plans were made for removal of the hardware and the central coring for decompression of the femoral neck and head.... .... The patient was taken to the Operating Room and placed under general endotracheal anesthesia and placed on the fracture table. The right buttock, flank and leg were then shaved and prepped with Betadine soap and solution and alcohol and draped in a routine manner. The previous incision was used and the dissection was carried through the skin and subcutaneous tissue down to the ileotibial band which was split and the posterior aspect of the vastus lateralis was then split and the lateral aspect of the femur was then exposed exposing the plate and compression screw. The screws were then removed and the side plate removed as well as the large lag screw and the additional smaller lag screw was also removed. At this point measurements were taken and the central coring reamer was then used to ream the canal up to approximately 5 mm. of the femoral head. Upon completion of this the wound was irrigated with antibiotic solution and then closed over 2 Hemovac drains, one deep and one superificial to the ileotibial band. Figure-of-eight Vicryl #1 suture was used for the vastus lateralis fascia and the ileotibial band. The sub-q was re-approximated with staples. The Hemovacs were connected to suction and xeroform along with fluffs and a sterile Webril was used as a dressing as well as an Ace wrap and elastoplast and 2 inch tape. Claimant continued under Dr. Samuelson's care until September 26, 1990. At that time, he was given an impairment rating: Edward Thomas as you know has had avascular necrosis of the hip and at the present time I would rate him at 10% of the whole body. This may change drastically in the future or may continue to improve. The patient may go on to have collapse of the femoral head and need a total hip arthroplasty. conclusions of law The first issue to be resolved is whether an employee/employer relationship exists between claimant and defendant Hansen & Sons Welding. Claimant argues that a Page 6 joint venture existed between Hansen & Sons Welding and Leo Morgan and as a result, claimant is an employee of Hansen & Sons Welding. Defendants argue that, at best, an independent contractor relationship existed between defendant Hansen and Leo Morgan, which would relegate claimant as an employee of Leo Morgan's, an uninsured business. The only way that claimant can prevail in this case is if a joint venture exists between defendants, Kenneth Hansen d/b/a Hansen & Sons Welding, and Leo Morgan is who uninsured. If a joint venture exists between the two entities, claimant would be considered an employee of the joint venture, and secured by Hansen & Sons Welding workers' compensation insurance. A joint venture relationships exists where there is an association of two or more persons to carry out a single business enterprise for profit. Brewer v. Central Construction Company, 43 N.W.2d 131, 136 (Iowa 1950). It is not necessary that there be a specific formal agreement solidifying the joint venture; direct evidence or circumstantial evidence of a mutual agreement to share in the profits is sufficient. See, Goss v. Lanin, 152 N.W.43 (Iowa 1915). Recently, the Iowa Supreme Court addressed the concept of a joint venture in Farm Field Products v. Grain Processing, 429 N.W.2d 153 (Iowa 1988). The Court stated that "no particular form of expression or formality of execution is necessary. It need not be expressed but maybe implied in whole or in part from the conduct of the parties." Id, at 156. There is evidence to support both arguments; however, it appears from the record that the greater weight of the evidence lies with claimant, and the undersigned finds a joint venture between defendant Hansen and Leo Morgan. Most persuasive was Kenneth Hansen's own testimony at the hearing: Q. (BY MR. KILLINGER) Wasn't it your understanding that-- with regard to insurance coverage that Morgan and his crew were covered by your insurance? MR. JOE COSGROVE: Just a moment. We would object, Your Honor, for the reason that it's not relevant or material to what this-- to any issue in this case whether or not he thinks that his-- or has an opinion as to whether or not he's got insurance coverage and further that there's no foundation shown that shows that he's qualified to make any such judgment. THE COURT: Overruled. THE WITNESS: I don't know how to answer that. Q. (BY MR. KILLINGER) Well-- Page 7 A. It was yes then but later no. You got me in the middle. Q. You were asked that question in your deposition, were you not? A. I'm sure I was. Q. In fact at Page 14, beginning at Line 17 of the -- your deposition taken on December 6, 1989 at which time Mr. Cosgrove was present you were asked the question, what was your understanding of this arrangement on the 5th of September? Did you believe that Leo Morgan's crew was there covered by your insurance? A. Yes. Q. Is that how you answered? And at -- you were asked that question later in a little different way, were you not, about whether you thought that your insurance coverage covered Mr. Morgan's men during the deposition? A. Yes. Q. So at least on September 5th you wouldn't have had any disagreement that Morgan's men were covered by your insurance? A. No. (Transcript, Pages 204-206). Although the undersigned found it difficult to cull out fact from fiction from Leo Morgan's testimony, the undersigned understands that only after Morgan felt that his feet were being held to the fire, did he recant, and pronounce claimant as "his" employee, and denounce defendant Hansen as his partner. Most persuasive is Morgan's testimony at the hearing: Q. You're not doing the kind of work that you were doing when Mr. Thomas was injured on September 5th of '87? A. No. Q. And your business entity which was called R&W Plumbing is no longer in existence? A. No. Q. Prior to that time, prior to September 5th, 1987 you did some work at the Denison IBP plant, did you not? A. Yes, yep. Page 8 Q. And you started working there on a blood plasma job in February of '87, did you not. A. Right. Q. And you got on to that job through Mr. Hansen; is that true? A. Hansen and Nedimeyer (phonetic), yeah. Q. Nedimeyer. Nedimeyer was a partner or foreman of Mr. Hansen, wasn't he? Yes? A. Yes. Q. That is he worked with Mr. Hansen? A. (Nods head in affirmative manner.) Q. That's how you got into the IBP plant? A. Right. Q. And you worked on the blood plasma job? A. Yep. Q. And were you carrying workmen's comp insurance at that time? A. Nope. Q. And were you relying on Mr. Hansen's insurance? A. Yes. Q. Were you billing your work through Mr. Hansen? A. Yes. Page 9 Q. As you were billing IBP for your work through Mr. Hansen, he was billing IBP for your work; is that correct? A. Some of it, yeah. Q. Well, the blood plasma job? A. The blood plasma job they paid me directly. Q. Mr. Hansen paid you? A. Well, that's where the check come from, yes. Q. The check came from Mr. Hansen, not IBP? A. No, Hansen & Son Welding. Q. All right. Now we're on the same wavelength. But he billed IBP for the work that you did on the blood plasma job? A. Now this I don't know. Q. But you were paid by Hansen? A. Right. Q. You -- you did work; you turned in time to somebody, didn't you? A. It was -- the man told me -- come to me and said we'll give you this much money to do this job. Q. And he paid you that? A. Right. We done the job. He paid us. Q. And you didn't have workmen's comp insurance? A. No. Q. You were relying on his insurance? A. Mr. Nedimeyer told me that their insurance would cover it. Q. Okay. Because you couldn't work at the IBP plant supposedly without work comp and liability insurance; is that correct? A. Yes, that's correct. (Tr. pp. 136-139). Claimant produced additional evidence which indicates a Page 10 joint venture. Defendant paid claimant $100 for the work claimant performed on September 5, 1987, the day claimant was injured (Claimant Exhibit 11). It was only after claimant was injured, and the "scramble" began to supply him with workers' compensation coverage, did Morgan reimburse defendant Hansen the $100. On at least one occasion, Morgan paid defendant between $200 and $300, (a part of Morgan's profit) for work performed on the project for IBP. (Tr. P. 180). Defendants have tried to establish an independent contractor relationship between Morgan and IBP, thereby, relieving defendant Hansen of liability for this injury. However evidence presented does not support this argument. Claimant has a noticeable limp, and walks with a cane. Upon observation, the undersigned finds claimant's physical limitations to be legitimate, and as such, feels he would not be the most desirable applicant to prospective employers. The healing period has been lengthy, approximately three years. At the time of the injury, claimant was entering what is usually considered to be the prime of his life in terms of earning capacity. He has completely lost the three years devoted to his healing period; this has certainly affected his ability to earn a living. In order to bill directly to IBP for work performed at the plant, IBP required evidence of general liability and workers' compensation insurance. (Tr. P. 255). Morgan misrepresented to IBP that he had secured the necessary insurance; in fact, he had not taken the steps necessary to obtain the insurance: Q. Before September 5th of 1987 had you talked to a Penny Storm (phonetic) at the -- I believe the Walthill Bank about some workmen's comp and liability coverage? A. Yes. Q. And was that on August 24th of '87? A. I can't tell you for sure the date. Q. But you did talk to her about it? A. Right. Q. And you tried to make some arrangements to purchase some insurance? A. Right. Q. And as it turned out later after September 5th and after Mr. Thomas's injury you hadn't really purchased that insurance, had you? A. No. Page 11 (Tr. p. 147) Yet, Morgan started to bill directly to IBP in August 1987 (Tr. p. 255; Defendant Ex. A). Prior to that time, Morgan's bills for electrical work completed at the plant went directly to defendant Hansen. In finding a joint venture between defendant Hansen and Leo Morgan, the undersigned finds that the only way the joint venture partnership could be separated would have been by Morgan actually securing the necessary insurance he needed in order to bill directly to IBP for the work he performed. Morgan did not obtain the insurance, and therefore a joint venture relationship existed between defendant Hansen and Morgan on September 5, 1987. As a result, claimant is considered an employee of defendant Hansen, and is entitled to workers' compensation benefits. The next issue to be resolved is whether claimant received an injury which arose out of and in the course of his employment. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 5, 1987 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). Page 12 The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Claimant was taken to the job site by Leo Morgan on September 5, 1987. When claimant arrived at the site, he was instructed to move materials into the building, and was later instructed to begin pulling the conduit in preparation of the remaining electrical work to be performed at the plant. Claimant has proved by a preponderance that he was in the course of performing the duties required by his employment. And, claimant has shown that his injury arose out of, or was caused by, his employment. The next issue to be addressed is whether claimant is entitled to temporary total or healing period benefits. Temporary total disability benefits are defined under Iowa Code section 85.33(a): Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Healing period benefits are defined under Iowa Code section 85.34(1): If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged Page 13 at the time of injury, whichever occurs first. Claimant was injured on September 5, 1987, and was taken by ambulance to the Crawford County Memorial Hospital emergency room. He was then transferred to St. Lukes Regional Medical Center in Sioux City, where he came under the care of Dr. Samuelson, who performed initial surgery on September 5, 1987, and the subsequent surgery on August 8, 1988. Claimant has been under Dr. Samuelson's care since the injury. On September 26, 1990, Dr. Samuelson rendered the following opinion: Edward Thomas as you know has had avascular necrosis of the hip and at the present time I would rate him at 10% of the whole body. This may change drastically in the future or may continue to improve. The patient may go on to have collapse of the femoral head and need a total hip arthroplasty. Pursuant to the provisions of Iowa Code section 85.34(1), claimant is awarded healing period benefits from the date of injury, September 5, 1987 through September 26, 1990. The next issue to be resolved is whether claimant's injury falls under Iowa Code section 85.34(2)(o), as an injury to the leg; or, whether claimant has sustained an injury to the body as a whole, which would require an evaluation of his industrial disability. If claimant has sustained a scheduled member injury, he would be entitled to ten percent of 250 weeks or a total of 25 weeks of permanent partial disability benefits. If claimant has sustained an injury to the body as a whole, an evaluation of his loss of earning capacity is warranted. The hip joint has been defined as follows: This articulation is a ball-and-socket joint ...formed by the reception of the head of the femur into the cup-shaped cavity of the acetabulm. The articular cartilage on the head of the femur, thicker at the center than at the circumference, covers the entire surface with the exception of the fovea capitis femoris, to which the ligamentum capitis is attached; that on the acetabulum forms an incomplete marginal ring, the lunate surface. Within the lunate surface there is a circular depression devoid of cartilage, occupied in the intact body by a mass of fat covered by synovial membrane. H. Gray, Anatomy of the Human Body, at 341 (Goss ed. 1973). The angular shaft of bone at the upper end of the femur, between the main mass of the femur, and the ball of the hip socket is called the "neck" of the femur. Id. at 344-45. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986). This is where claimant's fracture occurred. (See, Cl. Ex. 1). Page 14 In Lauhoff, 395 N.W.2d 834, the Court held that the employee, who had sustained a fractured neck of the femur had sustained a body as a whole injury, thereby mandating an industrial disability analysis. In Lauhoff is parallel to the instant case, and is therefore concluded that claimant sustained an injury to the body as a whole. The next issue to be decided is whether claimant is an odd-lot employee. Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd- lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such cases it should not be enough to show that claimant is physically capable of performing light work and then round out the case for noncompensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining Page 15 regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 1980). The concept of an odd-lot employee is a rule of evidence. In the instant case, claimant has not presented sufficient evidence to prove he is unemployable in the competitive job market. The next issue to be resolved is the 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 Page 16 becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial 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 injury, claimant was 34 years old. For the majority of his working life, his positions in the work force involved heavy labor or construction/carpentry work. Claimant does have approximately two years of post high school education, and it has been shown that he has been able conduct the bookkeeping aspect a business or enterprise. At the time of the hearing, claimant had not returned to work. In fact, Dr. Samuelson was of the opinion that claimant would not be able to return any type of carpentry work, and that claimant is limited in his ambulation and lifting activities. It should also be noted that Richard Ostrander, a vocational rehabilitation specialist worked with claimant. The record reflects that claimant will need to undergo retraining in order to be satisfactorily employable. Claimant's medical condition prior to the injury was unremarkable; since the injury, he has undergone two operations to repair the right hip. His wrist has not caused him substantial difficulties, although it hinders his ability to use extensively his wrist and arm. As previously discussed, claimant's injury extends into his right hip, and the medical treatment and recouperating process have been painful, extended, and costly. He has sustained a conservative ten percent functional impairment of the body as a whole. On an intellectual, emotional and physical level, claimant is above average, and has tried to return to normal activities. He has been frustrated with the physical and financial limitations which resulted from the injury. Claimant's earnings prior to the injury range from minimum wage positions to average profits from a construction business he owned. At the time of the injury, claimant was making $10 per hour. Claimant is a high school graduate, with approximately two years of advanced education. Claimant's motivation was not discussed in great detail. Although he cooperated with the vocational rehabilitationist, the record is silent as to the number of jobs and types of jobs for which claimant has applied. There is an opinion from the vocational rehabilitation expert that claimant is an "odd-lot" employee, and is unemployable. After considering all of the relevant factors the undersigned finds claimant has sustained a 25 percent industrial disability. Page 17 Finally, the last issue to be addressed is claimant's workers' compensation rate. Iowa Code section 85.36(7) provides, in pertinent part: In the case of an employee who has been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury, the employee's weekly earnings shall be computed under subsection 6, taking the earnings, not including overtime or premium pay, for such purpose to be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury. At the time of the injury, claimant had been promised $10 per hour. He was married, and had one dependent child living at home. He was to work 40 hours a week, so that total gross weekly wages would have been $400. Claimant's workers' compensation rate is $256.22 per week. Page 18 order THEREFORE, it is ordered: Defendants shall pay unto claimant healing period benefits from September 6, 1987 through September 26, 1990 at the rate of two hundred fifty-six and 22/100 dollars ($256.22) per week. Defendants shall pay unto claimant permanent partial disability for one hundred twenty-five (125) weeks at the rate of two hundred fifty-six and 22/100 dollars ($256.22) per week. Defendants shall pay all medical bills incurred due to this accident. Defendants shall pay the accrued weekly benefits in a lump sum, and there having been no benefits paid, there is no credit against the same. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30 Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. 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 February, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sam S Killinger Attorney at Law 300 Toy Natl Bank Bldg Sioux City Iowa 51101 Mr Joe Cosgrove Attorney at Law 400 Frances Building Sioux City Iowa 51101 Page 1 2001; 1803.1; 1800; 4100 Filed February 28, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : EDWARD R. THOMAS, : : Claimant, : : vs. : : File No. 888727 KENNETH HANSEN d/b/a HANSEN : & SONS WELDING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LEMARS MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2001 Employer/employee relationship found. Claimant approached by uninsured business, who represented to claimant that the business was in partnership with defendant, who was insured. On the first day of the job, claimant fell 15 feet and broke his right hip and wrist. Uninsured business told defendant that one of defendant's employees had been hurt on the job. Then, uninsured business recanted, and denied any relationship between uninsured and defendant. Held: Joint venture existed, and claimant was employee of the joint venture. Uninsured business had billed the work performed on the job through defendant Hansen, who submitted an entire bill to IBP. Uninsured had given some of its profits to defendant. 1803.1 Claimant suffered fracture to femural head; Held: compensable as an industrial disability. 1800 Claimant, 34 at the time of injury, suffered 10 percent functional impairment to right hip, with guarded prognosis. Hip replacement(s) likely in the future. Treating physician opined that claimant would be unable to return to carpentry/construction work, which comprised a majority of claimant's work history. No contrary medical evidence Page 2 submitted. Claimant awarded 25 percent industrial disability. 4100 Record was silent as to claimant's attempt at reentering the job market. Held: Claimant not an odd-lot employee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN RARDIN, Claimant, File No. 888735 vs. A R B I T R A T I O N IOWA DEPARTMENT OF D E C I S I O N TRANSPORTATION, Employer, F I L E D and DEC 20 1989 STATE OF IOWA, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendant. INTRODUCTION This is a bifurcated proceeding in arbitration brought by John Rardin, claimant, against Iowa Department of Transportation, self-insured employer, defendant. The case was heard by the undersigned in Des Moines, Iowa on August 23, 1989. The record consists of the testimony of claimant. The record also consists of the testimonies of William A. Nelson and Mark Kerper and joint exhibits 1-31. ISSUES As a result of the prehearing report and order submitted and approved on August 23, 1989, the issues presented by the parties at this bifurcated hearing are: 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is.a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability/ healing period benefits; and, 4. Whether claimant is entitled to medical benefits under section 85.27. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1.. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. It is stipulated that the injury is not a cause of permanent disability at this time; 3. The extent of entitlement to weekly compensation for temporary total disability or healing period, if defendant is liable for the injury, is stipulated to be from July 29, 1988 and continuing; 4. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $220.63 per week; and, 5. Defendant has paid claimant $860.07 per month under its long-term disability plan and defendant is entitled to a credit under section 85.38(2). This pay commenced on December 1, 1988 and is continuing. FACTS PRESENTED Claimant reported he was 34 years old at the time of the hearing. He testified that in 1979, he was working for Max Eaton Industries when he fell 12 feet from a ladder to the ground. Claimant stated he injured his head and his back and that in 1981, Dr. John Walker, M.D., performed a fusion at T-2 to T-6. Claimant reported he entered into a settlement with Eaton Industries where claimant was paid 35 percent permanent partial disability benefits. Claimant also testified he commenced his employment with defendant on June 17, 1985, when claimant was hired as an engineering aide II. He stated he again injured himself while working on September 12, 1986. Claimant indicated he was attempting to load a 200 to 300 pound sive shaker when the equipment slipped and it jerked claimant's back. According to claimant, no workers' compensation claim was filed but he was treated for upper back problems. Claimant reported he secured a position as a computer aided drafting and design draftsman in March of 1987. At the time of his employment, claimant stated he was required to work at a drafting table. Claimant testified he began experiencing low back pains from stooping and leaning over the drafting table. As a result, an ergonomics,,study was conducted by a staff person at Mercy Hospital in Des Moines. Claimant was then provided with a table that could tilt and with a new chair. Claimant testified that in 1987 and 1988, he missed many hours of work and that his last day of work occurred on July 29, 1988. Claimant maintained his supervisor told him to go home. Since that date, claimant related he is able to fish from his boat but he is unable to mow or house clean. Claimant indicated he can sit for 45 minutes and stand for 30. William Nelson testified for defendant. Mr. Nelson reported claimant worked in his unit from August 24, 1987 to July 29, 1988. Mr. Nelson indicated he supervised seven to nine individuals and he worked 10 to 12 feet from claimant. Mr. Nelson noted the drafting table which was purchased for claimant could be raised, lowered, and tilted from the front. He also revealed a special chair had been secured for claimant. The chair too could be raised, lowered or tilted and there was a place for claimant's feet. Mr. Nelson testified claimant could alternate between sitting and standing while he was working. Mr. Nelson stated claimant missed a great amount of work time. Mark Kerper testified for defendant. Mr. Kerper noted claimant was in his section at work and that the witness had ample time to observe claimant. Mr. Kerper reported claimant complained of headaches and back pain and that claimant took leave without pay. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 29, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967)., The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding.upon the commissioner, but must be weighed together with the other.disclosed facts and circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 29, 1988, is causally related to the disability on which he now bases his claim. Bodish, 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, 247 Iowa 691, 73 N.W 2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting.injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement.that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 295 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). ANALYSIS Claimant has proven by a preponderance of the evidence that he has sustained an injury which arose out of and in the course of his employment. The injury, as testified to by claimant, was gradual in nature due to claimant's constant leaning and stooping over his drafting table. Claimant indicated most of his work was done at the drafting table from September of 1987 until his last day of work on July 29, 1988. Claimant normally worked eight hours per day, five days per week. The injury was gradual or cumulative in nature. See McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, (Iowa 1985) where the supreme court has determined the cumulative rule applies when disability develops gradually or as a result of repeated,trauma. McKeever, supra at 374. For cases involving the cumulative injury rule, the supreme court has determined an injury occurs when an employee, because of pain or physical inability, can no longer work. McKeever, supra at 374. In the case at hand, the date of injury is July 29, 1988. That is the last day on which claimant worked. On that day claimant only worked 2 to 2 1/2 hours. He was unable, because of his low back pain, to continue working for defendant. The date of injury is July 29, 1988. The next issue to address is whether there is a causal relationship between the alleged injury and the claimed disability. It is undisputed claimant had a preexisting back condition. However, the previous problems were.located in the thoracic area at T-2 to T-6. Claimant, in the instant case, is alleging a low back problem. Medical records indicate a "Herniated disc L4-L5 with underlying degenerative disc disease..." William R. Boulden, M.D., an orthopedic surgeon, found the requisite causal connection. He opined in his letter of July 14, 1989. It is our feeling that the work that Mr. Rardin was doing is a definite contributing factor that has made his symptoms more prevalent and a problem from the degenerative disc at L4/5. I do not feel that the injury itself caused the patient to have the development of the degenerative disc disease but I feel that it is definitely the cause that has made it become symptomatic or accelerated the degenerative process. The opinion of J. R. Anderson, D.O., is not totally consistent with the opinion of Dr. Boulden. As of February 8, 1988, Dr. Anderson writes: I have treated John Rardin for approximately two years with continous [sic] complaint of low back pain, cervical pain, and headache arising from the upper cervical area.... Nevertheless, Dr. Anderson does opine: John is now working as a drafter, a job which continues to put stress on his previously compromised spine.... Joel D. Boyd, D.O., does not address the issue of causation. Thomas A. Carlstrom, M.D., in his report of February 22, 1989, writes: I saw John Rardin on the 9th of February, 1989. He is a patient, age 33, who has complained of low-back pain since a work incident in 1986. There is a prior history of back pain, which was mid thoracic and treated with a thoracic fusion by Dr. John Walker,in 1981. James W. Elliott, D.O., only addressed claimant's headache pain, neck and upper back pain. With respect to claimant's low back pain, Dr. Elliott writes in his report of June 21, 1989: "He has been evaluated by Dr. Bolden [sic] is continued low back pain and is still in the process of evaluation for that at this time." Martin S. Rosenfeld, D.O., in his report of August 14, 1989, writes: Initial office visit of John Rardin, a 33 year old gentleman with low back pain was carried out on May 1, 1989. Patient states that he injured his back in September, 1986 pulling a rock shaker from the back of a truck. He has pain and problems since that time. He had an old upper thoracic fusion from T2 to T6 in 1981. He has seen numerous physicians, had evaluations and complains of discomfort in the low back most of the time.... .... Impression: Chronic low back pain. It is the determination of the undersigned that more weight is attributed to the opinion of Dr. Boulden. He was a treating physician. He is a specialist in orthopedic surgery. Dr. Boulden saw claimant on at least seven occasions. He had ample opportunity to determine the cause of claimant's low back condition. Furthermore, the opinion of Dr. Anderson, another treating physician, is consistent with the opinion of Dr. Boulden. Dr. Anderson opines that claimant's preexisting back condition is further stressed by claimant's drafting position. Some of the other physicians, on the other hand, were only retained for purposes of examination and evaluation. They were not treating claimant. They did not have the number of patient contacts, that Dr. Boulden and Dr. Anderson had with claimant. In light of the foregoing, it is the determination of the undersigned that claimant has established by a preponderance of the evidence the requisite causal connection between the injury and the claimed disability. The next issue for determination is whether claimant is entitled to medical benefits under section 85.27 of the Iowa Code. This section provides in relevant part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. ... 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 choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. This division has held that it is inconsistent to deny liability and the obligation to furnish care on one hand, and at the same time, to claim a right to choose the care. Therefore, a denial of liability precludes an employer from selecting the medical care. Lewis E. Jones v. R. M. Boggs Company Inc., File No. 655193 (Arbitration Decision - July 22, 1986); Kindhart v. Fort Des Moines Hotel, (Appeal.Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). In the case at hand, it is the determination of the undersigned that the following expenses have been incurred for reasonable and necessary medical treatment causally related to claimant's condition. It is the determination of the undersigned that.defendant is liable for the following medical.charges: Dr. Carlstrom (Neurological exam) $ 100.00 Dr. Martin S. Rosenfeld 121.80 Surgery Center of D.M. 1,340.00 12 trips to physical therapy to Des Moines from Nevada, IA @ 103.7 miles x .21 = 261.32 5 trips to Dr. Boulden to Des Moines from Nevada, IA @ 103.7 miles x .21 108.88 Total $1,932.00 The final issue to address is whether claimant is entitled to temporary total disability benefits or healing period benefits. It has not been determined whether claimant has sustained any permanency. However, for the sake of convenience, any weekly benefits imposed here will be called "healing period benefits/ temporary total disability benefits." Section 85.33 governs temporary total disability benefits. Section 85.33(1) reads: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32,.until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated.that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. By the very meaning of the phrase, a person with a "permanent disability" can never return to the same physical condition he or she had prior to the injury...See 2A. Larson, The Law of Workmen's Compensation section 57.12 (1981). The healing period maybe characterized as that period during which there is reasonable expectation of improvement of the disabling condition," and ends when maximum medical improvement is reached. Boyd v. Hudson Pulp & Paper Corp., 177 So.2d 331, 330 (Fla. 1965). That is, it is the period from the time of the injury until the employee is as far restored as the permanent character of his injury will permit. "Winn Drilling Company v. Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 904,905-6 (1965). See also W. Schneider, Schneider's Workman's Compensation, section 2308 (1957). Thus, the healing period generally terminates "at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Winn, 203 N.E. at 906. Armstrong Tire & Rubber Co. v..Kubli, 312 N.W.2d 60, 65 (Iowa 1981). Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)"u" provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks that the disability bears to the body as a whole. A healing period may be interrupted by a return to work. Riesselmann V. Carroll Health Center, 3 Iowa Industrial Commissioner Reports 209 (Appeal Decision 1982). In the case at hand, claimant left work due to his injury on July 29, 1988. The parties have stipulated that in the event defendant is found liable, that benefits have run from July 29, 1988 and they are continuing. They will continue throughout the healing period or temporary total disability period. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Claimant incurred a work related cumulative injury to his lower back on July 29, 1988, while employed by defendant. Finding 2. As a result of his work injury on July 29, 1988, claimant materially aggravated a preexisting back condition. Finding 3. Claimant is not currently working. Finding 4. Claimant's condition would not significantly improve as of February 22, 1989. Finding 5. Defendant is responsible for payment of claimant's medical bills and medical mileage incurred as a result of claimant's injury of July 29, 1988. Finding 6. Permanent partial disability, if any, has not been determined,yet. Conclusion A. Claimant's cumulative injury of July 29, 1988, arose out of and in the course of claimant's employment. Conclusion B. Claimant's injury to his lower back is causally connected to his cumulative work injury of July 29, 1988. Conclusion C. Claimant is in the healing period/temporary total disability period from July 29, 1988 and it is continuing for the duration of the period of coverage. Conclusion D. Defendant is responsible for claimant's medical bills and medical mileage expenses incurred as a result of his July 29, 1988 injury and as they are incurred in the future so long as they are reasonable and so long as they relate to this injury. ORDER THEREFORE, defendant shall pay unto claimant healing period benefits/temporary total disability benefits at the stipulated rate of two hundred twenty and 63/100 dollars ($220.63) per week from July 29, 1988 and continuing for the duration of the healing period temporary total disability period. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award of all long term disability benefits paid by the defendant and as provided under section 85.38(2) of the Iowa Code. Defendant shall pay interest on the benefits awarded herein as set forth in section 85.30. Defendant shall pay claimant's medical expenses as aforementioned in the sum of one thousand nine hundred thirty-two and no/100 dollars ($1,932.00) and defendant shall pay future reasonable and necessary medical expenses as they are incurred by claimant with respect to this injury. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendant.shall file a claim activity report upon payment of this award. Signed and filed this 20th day of December, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph M. Bauer Attorney at Law 309 Court Ave 500 Saddlery Bldg Des Moines IA 50309 Mr. Robert P. Ewald Assistant Attorney General Iowa Department of Transportation General Counsel Division 800 Lincoln Way Ames IA 50010 5-2209; 5-2501 Filed December 20, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN RARDIN, Claimant, vs. File No. 888735 IOWA DEPARTMENT OF TRANSPORTATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance carrier, Defendant. 5-2209 Claimant met his burden of proof that he sustained a cumulative injury to his back. No decision as to permanency, if any, had been made since it was a bifurcated proceeding. 5-2501 Claimant was entitled to reasonable and necessary medical costs. before the iowa industrial commissioner ____________________________________________________________ : KEVIN G. GLASER, : : Claimant, : File No. 888736 : vs. : A P P E A L : FLEXSTEEL INDUSTRIES, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 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 29, 1990, is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James J. Roth Attorney at Law 491 West 4th Street Dubuque, Iowa 52001 Mr. E. J. Giovannetti Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 9998 Filed December 10, 1991 BYRON K. ORTON LPW before the iowa industrial commissioner ____________________________________________________________ : KEVIN G. GLASER, : : Claimant, : File No. 888736 : vs. : A P P E A L : FLEXSTEEL INDUSTRIES, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed March 29, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEVIN G. GLASER, File No. 888736 Claimant, A R B I T R A T I 0 N VS. D E C I S I O N FLEXSTEEL INDUSTRIES, INC. , Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Kevin G. Glaser, claimant, against Flexsteel Industries, Inc., (hereinafter referred to as Flexsteel), a self-insured employer, for workers' compensation benefits as a result of an alleged injury on January 4, 1988. On September 14, 1989, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Flexsteel at the time of the alleged injury. 2. Claimant is seeking temporary total disability or healing period benefits from January 4, 1988 through February 5, 1989 and defendant agrees that he was not working at this time. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 2 4. If permanent disability benefits are awarded, they shall begin as of February 6, 1989. 5. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $272.64. 6. Medical expenses are no longer in dispute. ISSUES The parties have submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. Whether timely notice under Iowa Code section 85.23 was given to defendant; III. Whether there is a causal relationship between the work injury and the claimed disability; and, IV. The extent of claimant's entitlement to weekly benefits for disability. The prehearing report also indicates an issue concerning defendant's ability to take a credit under Iowa Code section 85.38(2) for sick leave granted to claimant as a result of the injury. This issue was not one of those listed on the hearing assignment order and the undersigned has no authority to hear or decide such an issue. This deputy is without power to modify a hearing assignment order issued by another deputy. Therefore, the issue will not be dealt with in this decision. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement shall be viewed as preliminary findings of fact. Claimant testified he has worked for Flexsteel since August 1981 as a welder. Claimant's supervisor testified that claimant was a good worker and not a complainer. He stated that claimant was not prone to absenteeism. GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 3 Claimant testified that he was injured at work on January 4, 1988, after a long period of constant back pain beginning with a work injury on April 1, 1987. Claimant said that before April 1, 1987, his back was strong and normal. He said that in August 1982, he experienced some back pain after lifting a bucket of parts but that he did not believe he was off work and quickly recovered. Claimant testified that he is a body builder and has lifted weights for 15 years. He said that he has never injured his back in such activity. He explained that in body building, there is no power lifting, only a slow increase in weights to build up the muscle. Claimant testified that on April 1, 1987, while working on a camper bed, he experienced intense low back pain after pulling a 35 to 40 pound part from a welding jig in a bent over position. He said that he fell to the floor and could not get up. He said that he never before experienced such pain. Claimant stated that he waited approximately an hour with his foreman until he could straighten up and then simply performed other light duty until the end of his shift. Claimant's foreman testified that he recalled this complaint of back pain. Claimant said that the next day he went to the hospital and was referred to an orthopedic surgeon, James A. Pearson, M.D. On April 8, 1987, Dr. Pearson began to treat claimant upon a diagnosis of acute lumbar strain and possible herniated disc. After a second appointment on April 16, claimant called Dr. Pearson's office on April 20, 1987, stating that he would no longer be coming in. However, Flexsteel records indicate claimant continued to receive treatment from Luke Faber, M.D., for his back pain on April 27. On May 19, 1987, claimant returned to Dr. Pearson complaining of a recurrence of back pain while on vacation in Hawaii. Claimant said that while swimming a wave threw him on the beach which aggravated his back. He denies that he was body surfing at the time. According to Flexsteel records, claimant called in sick upon his return due to neck and back pain stating "thought I broke my back." It was Dr. Pearson's impression at the time that claimant still had an acute lumbar strain and possible thoracolumbar strain. Claimant testified that between April 1987 and January 1988, he never improved. He said that he had constant low back pain with occasional flare-ups. He reported to Dr. Pearson each time he experienced one of these flare-ups. He said that prior to January 4, 1988, this pain never.radiated into his legs. He stated that after April 1, 1987, he began to wear a weight lifting belt at work to prevent further aggravation. The wearing of this belt was observed by fellow employees and claimant's supervisor. However, the GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 4 supervisor testified that claimant never complained to him of any back problems and that he did not know why claimant was wearing the belt. . David Murphy, one of. claimant's fellow employees, testified that he had heard claimant had back problems but never discussed it with him prior to, January 1988. Flexsteel shut down over the Christmas holidays from December 20, 1987 through January 3, 1988 and resumed work on January 4, 1988. According to company records, claimant apparently worked overtime 16 hours during the shut down period. Claimant returned to work on January 4, 1988. Claimant said that while lifting a pan full of parts, he felt a "sensation in his back." Pain then developed which gradually grew worse with shooting pain down into claimant's legs. Claimant said that he continued working but eventually his legs went numb and he could no longer bend over to pick up parts. He said that he stopped working and reported to the foreman. Claimant said that his foreman asked if he wanted to go to the hospital but the claimant said that he told his foreman that he would "wait until tomorrow to see if it gets better." Claimant said that he finished the shift but did not return to his normal work. He testified that when he awoke the next morning, he had difficulty getting out of bed and decided to go to the local racquet club to use the whirlpool bath. However, claimant testified that while going down the steps of his home, he lost all feeling in his legs and fell to his knees. Claimant said that he then sought immediate treatment from Dr. Pearson who noted the leg pain and ordered a CT scan. The scan was performed at the hospital and interpreted by a radiologist, D. Kahle, M.D., who found a right sided disc herniation at L5-Sl level of claimant's spine. At the top of the CT report under the heading of pertinent history and physical findings are the handwritten words: Fell Tues lifting wt's Thurs & reinjured LBP into Rt leg. The CT report was dated January 5, 1988. No other explanation of the handwritten words appearing in the report are contained in the record. Claimant denied that he reinjured his back while lifting weights but admits that he fell the morning before the CT scan. He denies talking with Dr. Kahle. It is clear that Dr. Pearson saw this report as he made repeated reference to its findings of herniation as a basis for his decision to operate on claimant's back on January 26, 1988. Dr. Pearson performed this surgery at the L4-5 and L5-Sl levels of claimant's spine. Claimant then was off work until February 6, 1989, recovering from the GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 5 surgery. Claimant returned to work to the same welding job that he had before. Initially, claimant was given work/activity restrictions but these have now been lifted and claimant has been released to return to his full duties. Claimant's foreman, Jerry Halfhill, admitted to the April 1, 1987 incident but stated that claimant did not report any other back injuries or back problems to him after that time, including the alleged incident on January 4, 1988. As stated above he admitted to observing claimant wearing a weight belt during this period of time but stated that he did not know why claimant was wearing the belt and had never asked why claimant was doing so. Mike Claver and David Murphy, two of claimant's fellow employees, testified that they worked in the same general area as claimant on January 4, 1988. Claver said that claimant told him during the shift that he hurt his back and that his legs "didn't feel right." Murphy said that while walking to the bathroom that day he passed by claimant's work station and claimant complained to him that he had no feeling in his legs. He said that claimant appeared perplexed and confused in that claimant did not know exactly what was causing the pain or why it was happening. Both of these employees testified that claimant appeared normal prior to the beginning of the shift. With reference to causation, Dr. Pearson reports as follows: At the present time the patient, and when last examined on August 18, 1988, is unessentially unchanged. The patient may have signs of a recurrent disc in his back. I think the patient's symptoms are all related to the initial injury which I saw him for. I am certain that other types of activities which he has done will aggravate his condition and will continue to aggravate it. At the request of defendant, another orthopedic surgeon, John Sinning, M.D., reviewed claimant's case history, although he did not examine claimant. Dr. Sinning opined that there was no reason based upon medical reasonableness to attribute the disc herniation with right leg pain to the April 1987 injury. He stated that the herniation was either spontaneous on January 4, 1988 or the result of the fall or lifting weights as set forth in the radiological report of Dr. Kahle. He said that the herniation could not have occurred before that time due to claimant's lack of leg pain prior to January 4, 1988 and claimant's ability to remain GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 6 employed prior to that time. In response to Dr. Sinning, Dr. Pearson stated as follows: The comments by.Dr. Sinning, I think are appropriate but possibly the finding of pain in his leg preceding back pain in herniated disc is not always the way which I find them. Frequently a herniated disc may begin with severe back pain and then radiate to the legs at a later time. This later time can be a fairly long interval from the actual injury until the pain radiates into the extremity. Finally, Dr. Pearson states that he has not determined any degree of permanent impairment for claimant. Claimant testified that he has some pain in his back and leg but is not currently receiving treatment. Claimant testified that he is able to continue in his current employment. APPLICABLE LAW AND ANALYSIS I .Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist. , 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. Note: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the occurrence of an injury and extent of the injury and disability. From his demeanor while testifying, claimant will be found credible. Also, from their respective demeanors, witnesses Claver and Murphy, are found credible. With reference to the events of January 4, 1988, the undersigned would like to believe that the foreman was not lying and only had forgotten the events. However, if the undersigned is to make a decision as to credibility, he would not be in favor of Mr. Halfhill. The undersigned found it quite incredible to suggest that a foreman in a manufacturing plant would not question why one of his GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 7 employees was wearing a back brace or a lifting belt. Also, I don't find the vague written comments at the top of the CT scan report as controlling in this case without some evidence as to who authored these comments and under what circumstances. It is also not persuasive to suggest that Dr. Pearson did not also see these comments when he makes repeated reference to the CT scan report in his own reports and based his surgery decision on such a report. Therefore, it will be found that claimant suffered a work injury on January 4, 1988. However, according to Dr. Pearson, this was only an aggravation of the injury of April 1, 1987 and apparently the last precipitating event leading to a CT scan which had found the herniation. Furthermore, it will be found that claimant suffered a work injury on April 1, 1987. It is clear that Dr. Pearson believes claimant's symptoms and surgery are the result of that injury. Such an injury date can be no surprise to defendant as it was also pled in the original petition in paragraph 10. It will also be found that claimant's disability from January 4, 1988 through February 5, 1989 is the result of the April 1, 1987 injury. This finding is based primarily upon the opinions of Dr. Pearson and claimant's credible testimony that his back problems began on April 1, 1987, after the pulling incident at work. Claimant had stated that his pain did not improve until after his recovery from surgery. Although Dr. Sinning is certainly a well qualified orthopedic surgeon, Dr. Pearson's opinions must be given greater weight. Dr. Pearson actually examined claimant after each episode of back pain between April 1, 1987 and the time of surgery. It was Dr. Pearson who actually performed the successful corrective surgery. As a result of this surgery, claimant was able to fully return to work. Defense counsel points to Dr. Pearson's use of the word "possibly" when he was responding to Dr. Sinning's opinions. However, Dr. Pearson used this word to provide a possible reason why he and Dr. Sinning were reaching different conclusions. Dr. Pearson merely suggested from his experience that leg pain does not always precede back pain in disc herniation cases. Dr. Pearson, in no manner, backed away from his clear original causal connection opinion. II. Claimant has an obligation under Iowa Code section 85.23 to report his injury to his employer within 90 days. As claimant is found credible, his testimony that he immediately reported both the April 1, 1987 and the January 4, 1988 injuries to his foreman is accepted. The foreman admitted to the April 1, 1987 injury which caused claimant's difficulties. GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 8 III. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant has failed to show that he suffers from permanent disability. Dr. Pearson does not indicate any permanent impairment resulted from the injury and claimant has returned to the same job without GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 9 restrictions. However, claimant has shown that his absence from work after January 4, 1988 through February 5, 1989 is work related. Claimant will be awarded temporary total disability benefits pursuant to Iowa Code section 85.33(1). FINDINGS OF FACT 1. From their demeanor while testifying, claimant, Mike Claver and David Murphy are found to be credible and truthful witnesses. 2. On April 1, 1987, claimant suffered an injury to the low back which arose out of and in the course of employment with Flexsteel. Claimant explained that his severe back pain began while pulling on a part in his job as a welder at that time. This injury eventually was diagnosed as a herniated disc at two levels of claimant's lower spine. 3. On January 4, 1988, claimant suffered an injury to his low back which arose out of and in the course of his employment at Flexsteel. Claimant experienced back and leg pain after lifting a pan of parts. This injury was an aggravation of the injury of April 1, 1987. 4. The work injury of April 1, 1987, was a cause of a period of disability from work beginning on January 4, 1988, and ending on February 5, 1989, at which time claimant returned to work. During this time, claimant received extensive treatment of the work injury consisting of limitations on activity, medications for pain and inflammation, home exercises and surgery. Although claimant was a weight lifter, he did not injure his back in this activity before or after April 1, 1987. Claimant had no chronic back problems before April 1, 1987. Claimant's various flare-ups of back pain following both work and recreational activity were only temporary aggravations of the April 1, 1987 injury. 5. Claimant has not shown by a preponderance of the evidence that his work injury has resulted in permanent disability. Claimant has suffered no permanent impairment from the injury or surgery. Claimant is not operating under any physician imposed work or activity restrictions. Claimant is able to fully perform the job that he was performing at the time of the work injury. CONCLUSIONS OF LAW Claimant has established under law entitlement to 56 6/7 weeks of temporary total disability benefits. GLASER V. FLEXSTEEL INDUSTRIES, INC. Page 10 ORDER 1. Defendant shall pay to claimant temporary total disability benefits from January 4, 1988 through February 5, 1989, at the rate of two hundred seventy-two and 64/100 dollars ($272.64) per week. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of March, 1990. LARRY P.WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James J. Roth Attorney at Law 491 West 4th St Dubuque IA 52001 Mr. E. J. Giovannetti Attorney at Law Suite 111, Terrace Center 2700 Grand Ave Des Moines IA 50312 5-1108 Filed March 29, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEVIN G. GLASER, File No. 888736 Claimant, A R B I T R A T I 0 N VS. D E C I S I 0 N FLEXSTEEL INDUSTRIES, INC., Employer, Self-Insured, Defendant. 5-1108 - Medical causation question Injury found but only temporary total disability benefits awarded.