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.