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                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         BETTY HAMMER,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 888785
 
         CLARINDA TREATMENT CENTER,    :
 
                                       :          A P P E A L
 
              Employer,                :
 
                                       :        D E C I S I O N
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              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.
 
         
 
                                      ISSUES
 
              
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
              1. The Deputy Industrial Commissioner erred in finding 
 
                 that the claimant was entitled to a re-evaluation of 
 
                 her previously litigated industrial disability.
 
         
 
              2. The Deputy Industrial Commissioner erred in failing 
 
                 to find that claimant was not entitled to further 
 
                 benefits because she suffered from no substantial 
 
                 change in condition.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed January 17, 1992 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.
 
         
 
              The arbitration decision filed on March 26, 1990, found 
 
         claimant to be 51 years old and the holder of a GED with some 
 
         college course work, but no degree.  Ms. Hammer commenced 
 
         employment as a mental health worker/resident treatment worker on 
 
         September 6, 1976.  The work of generally giving care to 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         residents was physically demanding, as she was required to turn, 
 
         feed and bathe residents frequently weighing over 150 pounds.  
 
         Prior to this job, claimant had work experience as a waitress and 
 
         bartender.
 
         
 
              The work injury occurred on November 7, 1985, when a 
 
         recalcitrant resident buckled his knees while claimant was 
 
         supporting him.
 
         
 
              As the result of a back injury at L4-5 suffered during this 
 
         incident, claimant underwent surgery at that level on April 6, 
 
         1986.  Upon her return to work, she was assigned to the substance 
 
         abuse unit, which generally entailed lighter duty, but also 
 
         involved the potential of physically demanding situations, such 
 
         as altercations with patients.  Claimant worked at this job until 
 
         pain became intolerable and she was unable to continue.  She 
 
         thereupon underwent a second surgical procedure to the same level 
 
         on October 7, 1988.  Following this surgery, claimant was 
 
         notified that her position had been filled, although she had 
 
         recall rights if she were to be released by her treating 
 
         physician.  The arbitration decision essentially found that 
 
         claimant willingly failed to return.
 
         
 
              At the time of the arbitration hearing, claimant had not 
 
         sought employment at all because she believed herself an 
 
         unreliable employee as she was unfit to look for work due to 
 
         residuals of the back injury.  She believed herself unable to 
 
         engage in vocational rehabilitation or to work in any capacity.
 
         
 
              As to her symptoms, claimant testified in her arbitration 
 
         hearing as follows:
 
         
 
              Q.  Following the surgery that you had at the Omaha 
 
              Methodist Hospital on October 7th, 1988, did you feel 
 
              significantly better?
 
         
 
              A.  No.
 
         
 
              Q.  Or was there an improvement?
 
         
 
              A.  The only improvement that I've had since that 
 
              surgery, that my leg doesn't hurt as bad as it did 
 
              prior.  My back still feels the same.
 
         
 
              Q.  And what are the symptoms that bother you, Ms. 
 
              Hammer?
 
         
 
              A.  Constantly back pain.  Sometimes there's sharp 
 
              jabbing pains.  Bending is difficult.  If I walk a 
 
              period of time, my leg gets numb.  Sitting and standing 
 
              over a period -- I have to move a lot in order -- seems 
 
              like there's pressure.  I have to move a lot.
 
         
 
              Q.  Are you able to sleep through the night?
 
         
 
              A.  No.
 
         
 
              Q.  Are you able to ride long distances in a car?
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              A.  No.
 
         
 
         (Transcript of Arbitration Proceedings, page 31, lines 3 through 
 
         23)
 
         
 
              This is consistent with Ms. Hammer's complaints during the 
 
         course of this litigation and prior to the arbitration hearing.
 
         
 
              The petition for review-reopening now under consideration 
 
         was filed on June 7, 1990, only two and one-half months after the 
 
         arbitration decision was filed, and two days after claimant 
 
         voluntarily dismissed her appeal of that decision.
 
         
 
              In her deposition of March 19, 1991, claimant was asked to 
 
         recite her current complaints:
 
         
 
              A.  To make it very simple, it's just bothered me since 
 
              I had surgery.  I believe I can feel a ruptured disc.  
 
              I don't know what the doctors can say.  At times, it's 
 
              just -- in layman's terms, it feels like -- the only 
 
              way I can relate it is like a balloon is being blown up 
 
              and it swells and a lot of pressure is being put on my 
 
              back.  And it hurts quite bad.  I've never totally been 
 
              without pain.  The medication I'm on will take the 
 
              sharpness away.  There's numbness in the left leg, the 
 
              hips, and when I walk, there's numbness in the right 
 
              leg also.  And it's just quite uncomfortable, and I 
 
              don't like it.  I wish something could be done, because 
 
              I don't think it's a very good future for anybody.
 
         
 
              Q.  Okay.  Any other symptoms?  You described it felt 
 
              like a balloon being blown up.
 
         
 
              A.  There's -- It feels like, sometimes, somebody is 
 
              putting their hands on my shoulders and pushing me to 
 
              -- to where you can't go any further.  There's a lot of 
 
              pressure.  There's pressure around the hips.  It feels 
 
              like I'm being torn apart.  Sometimes, it bothers -- 
 
              like it takes me awhile to use anything with my arms.  
 
              Just kind of everything.  And then the back of my neck, 
 
              if you sit too long, ride in a car and all that stuff, 
 
              it just feels like somebody is pushing my head down in.  
 
              And there's just a lot of pressure.
 
         
 
         (Deposition of Betty Hammer, joint exhibit 51, page 3, line 13 
 
         through page 4, line 12)
 
         
 
              However, the following exchange is also worthy of note:
 
         
 
              Q.  Okay.  And how are these complaints different than 
 
              they were before the hearing that we had in January?
 
         
 
              A. They aren't.  Things just have not improved.
 
         
 
         (Deposition of Betty Hammer, joint exhibit 51, page 5, lines 8 
 
         through line 10)
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
              In her hearing testimony, claimant complained of increased 
 
         jabbing and burning pains, stated that she cannot bend at all, 
 
         and complained that her pain is even more unbearable since she 
 
         discontinued medications in July 1991 at the advice of Leslie C. 
 
         Hellbusch, M.D., and the University of Nebraska Medical Center 
 
         Pain Clinic.  The extent of her symptomatology is now such that 
 
         she is unable to walk for more than approximately ten minutes.  
 
         At the time of her deposition, six months earlier, she was 
 
         walking twice a day, sometimes as much as a mile and one-half 
 
         plus a three-mile walk.  Claimant further complained at hearing 
 
         of intermittent spasms and the need to frequently lie down.  Her 
 
         leg goes numb with either extended sitting or standing.
 
         
 
              The arbitration decision pointed out that the following 
 
         restrictions were suggested by Frank P. LaMarte, M.D.:
 
         
 
              1.  No frequent or continuous bending, twisting or
 
                  stooping.
 
              2.  No lifting greater than 15 pounds more than six
 
                  times per hour.
 
              3.  Ability to alternate sitting and standing as
 
                  needed.
 
              4.  Work four hours per day, five days per week, for
 
                  the first month and advance one hour each day per
 
                  month, as tolerated, until she has reached an eight
 
                  hour day.
 
         
 
         (Arbitration Decision, filed March 26, 1990, page 6)
 
         
 
              And by Leslie C. Hellbusch, M.D.:
 
         
 
              I have recommended that she have a permanent twenty 
 
              pound lifting restriction and that she should have no 
 
              repetitive bending of her lower back.  It would be best 
 
              for her to be allowed to move from a sitting to a 
 
              standing position and vice versa on the job as needed.  
 
              She has had some experience working on "substance 
 
              abuse" and states that she can do this type of work and 
 
              that it is within the restrictions placed on her.  I 
 
              have encouraged her to gradually increase her walking 
 
              activity and have encouraged her to try to get back to 
 
              work in April of 1989.
 
         
 
         (Arbitration Decision, filed March 26, 1990, page 7)
 
         
 
              The arbitration decision noted that John C. Goldner, M.D., 
 
         opined that claimant was capable of functioning in a job 
 
         consistent with her education, training and experience, but that 
 
         it should not involve lifting or bending.
 
         
 
              Claimant has seen Dr. Hellbusch, a neurosurgeon, since the 
 
         previous hearing.  In a letter to claimant's attorney dated June 
 
         5, 1990, he refused to alter his previous assessment of 
 
         claimant's physical impairment, with respect to chronic 
 
         pain patients and treatment modalities relating thereto.
 
         
 
              Dr. Eaves, who sees lower back pain patients perhaps three 
 
         times a week, initially treated claimant with pain medication and 
 
         referred her to Clarinda Municipal Hospital for physical therapy.  
 
         By May 22, 1990, claimant was complaining of increased pain in 
 
         the lower back and numbness in the ball of the left foot.  Dr. 
 
         Eaves scheduled her for a magnetic resonance imaging examination 
 
         (MRI).
 
         
 
              This was performed on the same day by Kevin M. Cawley, M.D.  
 
         Dr. Cawley's report found a focal herniated disc present in the 
 
         paracentral region of L3-4, extending to the left and encroaching 
 
         on the nerve root sleeve (this at the level above the two 
 
         surgical procedures), with degenerative disc disease and previous 
 
         surgery found at L4-5 with postoperative fibrosis present 
 
         adjacent to the nerve root sleeve on the left and minimal loss of 
 
         signal density consistent with degenerative disc disease at 
 
         L5-S1, although no herniation was detected at that level.
 
         
 
              Claimant was seen on June 7, 1990, by Behrouz Rassekh, M.D.  
 
         Apparently by coincidence, Dr. Rassekh was also furnished an MRI 
 
         report and film, presumably the May 22 film.*****On June 15 he 
 
         wrote of multiple complaints but no objective finding except the 
 
         absence of right ankle reflex and noted that the MRI indicated 
 
         some bulging at L4-5 "which is very common finding with some 
 
         post-operative changes."  He did not recommend further surgery or 
 
         other therapy except continued exercise and believed claimant 
 
         could do sedentary work which did not require repeated bending or 
 
         lifting over 50 pounds.
 
         
 
              Based on Dr. Cawley's MRI report, Dr. Eaves testified that a 
 
         herniation at L3-4 on the left could account for some of 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         claimant's symptomatology and, if it was not present previously, 
 
         was indicative of a new finding which would aggravate her present 
 
         condition.  He further noted that scar formation in the area of 
 
         the previous surgical procedures was consistent with claimant's 
 
         subjective complaints of pain.  Dr. Eaves thereupon referred 
 
         claimant to a rehabilitation specialist and physiatrist, Jay J. 
 
         Parsow, M.D.
 
         
 
              Dr. Parsow's evaluation found claimant's range of motion and 
 
         flexion limited to the mid-normal range (her "bending" range of 
 
         motion was described as much less than that by claimant at 
 
         hearing).  Tenderness was noted at the L4 and L5 spinous 
 
         processes as well as bilaterally at the L3-4, L4-5 and L5-S1 
 
         facet joints.  Dr. Parsow found muscle spasms present diffusely.  
 
         The left sciatic notch was tender, but the right was not.
 
         
 
              Neurologically, Dr. Parsow found sensation diminished on the 
 
         left L5 and S1 dermatomes by 25 percent.  His review of the May 
 
         22 lumbar MRI noted the presence of disc desiccation at L4-5 and 
 
         L5-S1, a bilateral decrease in foraminal size at L5, right 
 
         greater than left, and disc bulges at L3-4 on the left and 
 
         centrally at L5-S1.
 
         
 
              Dr. Parsow's impression was of:
 
         
 
              1.  Status post laminectomy/discectomy syndrome (failed
 
                  back surgery).
 
              2.  Persistent lumbar disc with radiculopathy.
 
              3.  Lumbar facet syndrome.
 
              4.  Possible segmental instability.
 
         
 
         (Joint exhibit 5, page 3)
 
         
 
              Dr. Parsow also performed an EMG on June 19, 1990, leading 
 
         to an impression of electrical evidence of a bilateral L5-S1 
 
         radiculopathy but no evidence of peripheral neuropathy or 
 
         significant peroneal nerve entrapment syndrome.
 
         
 
              In a letter of August 22, 1990 to claimant's attorney, Dr. 
 
         Parsow declined to suggest physical restrictions as "highly 
 
         arbitrary" and limited his opinion to an impairment rating of 23 
 
         percent of the body as a whole.
 
         
 
              Dr. Eaves testified in light of his review of the MRI scan 
 
         and Dr. Parsow's report that complaints of chronic or persistent 
 
         pain were credible and that fibrotic tissue can create pain such 
 
         as that of which Ms. Hammer complains.  After seeing claimant 
 
         again on January 16 and March 5, 1991, he believed that claimant 
 
         showed some worsening of symptoms and that she was not capable of 
 
         engaging in a 40-hour week, 50-week per year job.  In his letter 
 
         of March 11, 1991, Dr. Eaves opined that claimant should not lift 
 
         over 10 pounds, could not stand in one spot for over 10-15 
 
         minutes, could not sit for any longer period of time, and that 
 
         stooping, climbing, kneeling, crawling and anything over limited 
 
         travel were "out."
 
         
 
              Claimant was seen for follow-up by Dr. Hellbusch on June 12, 
 
         1990.  He commented that magnetic resonance imaging on May 22 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         showed decreased signal intensity at L3-4, L4-5 and L5-S1, that 
 
         some epidural fibrosis was noted at L4-5 on the left and that 
 
         claimant was noted to have a left disc bulge at L3-4.  He opined 
 
         that claimant could return to work within restrictions previously 
 
         listed including permanent 20-pound lifting restriction, 
 
         permanent no repetitive bending of the lower back and no riding a 
 
         motorcycle (claimant had shortly following her second surgery 
 
         asked whether she could ride a motorcycle, which he interpreted 
 
         as sending "mixed messages" about the level of her discomfort).
 
         
 
              Claimant returned to Dr. Hellbusch on March 11, 1991, again 
 
         complaining of pain in the low back, mid-back and neck.  Pain was 
 
         described as about the same in terms of severity.  She was still 
 
         walking 3-4 miles per day.  Dr. Hellbusch found no neurologic 
 
         deficit and a good range of motion in the neck and back.  He 
 
         suggested that claimant discontinue pain medication and visit the 
 
         pain clinic at the University of Nebraska Medical Center.  Ms. 
 
         Hammer was released on a PRN (as needed) basis.
 
         
 
              Chart notes of the University of Nebraska Medical Center 
 
         Pain Program reflect that claimant was seen on May 24, 1991, for 
 
         evaluation.  Initial impression reported by co-medical director 
 
         Nikola Boskovski, M.D., on May 24, 1991, was of significant 
 
         chronic lower back pain, with claimant describing a change in the 
 
         involvement of pain and numbness in the left leg during the past 
 
         6-7 months.
 
         
 
              A repeat magnetic resonance imaging study was ordered and 
 
         performed on June 1, 1991.  It proved to be at odds with the May 
 
         22, 1990 MRI.  As read by Keith Kohatsu, M.D., and Francis Hahn, 
 
         M.D., the examination showed post-operative changes of 
 
         laminectomy at L4-5, but no evidence of recurrent disc disease or 
 
         post-operative fibrosis to account for neurologic symptoms.  
 
         Faced with this discrepancy, Dr. Boskovski suggested that it was 
 
         unnecessary to have a third examination performed, but that 
 
         claimant should "just take both MRI's for interpretation to an 
 
         independent radiologist of your choice."  This has not been done.  
 
         Dr. Boskovski also reminded claimant that, "[a]s we pointed out 
 
         during your last visit we believe your pain is real and it is 
 
         your right to search for best answer and treatment."
 
         
 
              Claimant was discharged before completion of the pain 
 
         management program.  Her participation in some sessions was 
 
         reluctant and she refused to participate in others.  In 
 
         particular, she was especially reluctant to participate in 
 
         psychological aspects of the program, preferring physical therapy 
 
         components.  Clinical psychologist James Willcockson, Ph.D., 
 
         noted in the discharge summary that claimant's prognosis for 
 
         recovery, rehabilitation and pain management was not good.  Dr. 
 
         Willcockson specified that claimant harbored a great deal of 
 
         anger, resentment and hostility regarding her injury, the 
 
         litigation process and ineffectual medical treatment.  As noted 
 
         in the arbitration decision, this has been an ongoing theme.
 
         
 
              Claimant has submitted unpaid medical bills from Emanuel 
 
         Medical Center, Clarinda Treatment Complex, Dr. Rassekh, Dr. 
 
         Eaves and Dr. Parsow.  All of these were unauthorized.  Claimant 
 
         also submitted a $61.00 bill from Midwest Neurosurgery (Dr. 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         Hellbusch) relative to an office visit on June 12, 1990.  
 
         Defendants also assert this was unauthorized.  However, Dr. 
 
         Hellbusch was the ongoing treating physician and defendants have 
 
         been found liable for this injury, which includes necessary 
 
         lifetime medical expenses under Iowa Code section 85.27.  
 
         Claimant was never advised that authorization was withdrawn with 
 
         respect to Dr. Hellbusch.  In fact, defendants' attorney wrote to 
 
         claimant's attorney on July 5, 1990, specifically authorizing Dr. 
 
         Hellbusch "to provide any and all necessary medical care for Ms. 
 
         Hammer's work-related back injury."
 
         
 
              Ms. Hammer also asserts that she has conducted a search for 
 
         work since the arbitration hearing, claiming that she has 
 
         received no job offers.  The evidence is in conflict on this 
 
         topic.
 
         
 
              Claimant's exhibit 7 purports to be a handwritten record of 
 
         that work search.  It was apparently prepared all at one time and 
 
         appears to indiscriminately list actual applications, mailing of 
 
         resumes, visits to a local Job Service office, telephone 
 
         conversations and even the taking of standardized aptitude tests.  
 
         These categories are not well distinguished.  However, it appears 
 
         that claimant may have made something on the order of 20 personal 
 
         job applications, plus repeat visits to some, such as the Page 
 
         County Jail and Bethesda Care Center.
 
         
 
              Claimant lists "Bethesda Care-Aide" in June 1990.  Also in 
 
         evidence is the July 23, 1990 affidavit of Debra Kirchner, 
 
         assistant director of nursing for Bethesda Care Center.  Ms. 
 
         Kirchner so testified that claimant personally applied for a 
 
         nurse's aide position on May 25, 1990 on a date when the care 
 
         center had at least one such opening available.  She further 
 
         reports:
 
         
 
              She stated that she had had back surgery in the past, 
 
              but did not at any time tell me that she would be 
 
              unable to perform the functions of a nurse's aide.  It 
 
              appeared from her application that she had much past 
 
              experience in this position.
 
         
 
              I offered her the job, which she accepted, and set up 
 
              an appointment for a physical.  She left saying she had 
 
              a doctor's appointment.  Approximately one hour later, 
 
              she returned and told me she would be unable to accept 
 
              the nurse's aide position because she had a slipped 
 
              disc in her back.  I have not seen her since.
 
         
 
         (Joint exhibit 41)
 
         
 
              Claimant testified that no job was offered her by Bethesda 
 
         Care Center, but that she received a telephone call asking her to 
 
         sign a release and was not advised of the necessity to take a 
 
         physical examination (or that she had been hired).
 
         
 
              It is clear from the detailed affidavit of Debra Kirchner 
 
         that she recalls this incident well.  Kirchner is a disinterested 
 
         witness and her version of events is more credible than that of 
 
         claimant.
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The applications in evidence show some variance as to how 
 
         claimant has presented her back condition.  In a May 15, 1990, 
 
         application to Clarinda Municipal Hospital, claimant completed a 
 
         line captioned "Physical Disabilities or Chronic Illnesses" by 
 
         simply noting back surgery 1988.  In an application presented to 
 
         The Clarinda Company on July 19, 1990, she checked the "Yes" box 
 
         when asked if she was physically or otherwise "unable to perform" 
 
         the duties of the job for which she made application, and added 
 
         details concerning her restrictions.  In a resume offered to the 
 
         Second Judicial District Department of Correctional Services, 
 
         claimant noted that she had "limited disabilities," but rather 
 
         interestingly reported that bowling was an activity she enjoys.  
 
         That resume was sent on January 15, 1991.
 
         
 
              It remains the case that claimant has not been offered 
 
         continued employment by the Clarinda Mental Health Center in 
 
         particular or the State of Iowa otherwise.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed January 17, 1992 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              Pursuant to Iowa Code section 86.14(2), in a proceeding to 
 
         reopen an award for payments, inquiry is to be made into whether 
 
         or not the condition of the employee warrants an end to, 
 
         diminishment of, or increase of compensation previously awarded.  
 
         A change in condition must be shown to justify changing the 
 
         original award.  Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 
 
         (1959).  It is not proper to merely redetermine the condition of 
 
         the employee as adjudicated by the former award.  Stice v. 
 
         Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940).
 
         
 
              A mere difference of opinion of experts or competent 
 
         observers as to the degree of disability arising from the 
 
         original injury is insufficient to justify a different 
 
         determination on a petition for review-reopening; there must be 
 
         substantial evidence of a worsening of the condition not 
 
         contemplated at the time of the first award.  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
         change in condition may be found where claimant has failed to 
 
         improve to the extent initially anticipated, Meyers v. Holiday 
 
         Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978).  
 
         Additionally, in cases not involving scheduled members, a change 
 
         in earning capacity subsequent to the original award which is 
 
         proximately caused by the original injury may constitute a change 
 
         in condition.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
         (Iowa 1980).
 
         
 
                  *****
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
              [The medical record fails to show a change of physical 
 
         condition since the arbitration award.  Although a change of 
 
         condition may include either a condition that was expected to 
 
         improve but did not improve, or did not improve to the extent 
 
         contemplated (Meyers, supra), there is no evidence that 
 
         claimant's condition was expected to improve at the time of the 
 
         arbitration decision, but failed to do so.
 
         
 
              A change of condition can also occur if the original 
 
         arbitration award was based on a mistake or misconception as to 
 
         claimant's actual condition.  Although a claimant cannot utilize 
 
         the review-reopening process to relitigate the arbitration 
 
         decision under Gosek v. Garner and Stiles Co., 158 N.W.2d 731, 
 
         735 (Iowa 1968), an award based on a mistake can be re-examined 
 
         in review-reopening.
 
         
 
              However, neither the Meyers failure to improve situation or 
 
         the Gosek mistake of fact situation exist here.  There is no 
 
         medical evidence that claimant's condition was expected to 
 
         improve.  There is no medical evidence that claimant's condition 
 
         has, since the original award, failed to improve as expected.  
 
         Similarly, there is no medical evidence that the original award 
 
         was based on mistaken medical evidence.  
 
         
 
              Rather, the only change of condition claimant has shown is a 
 
         1990 MRI that reveals post-operative fibrosis.  There is no 
 
         medical evidence that this post-operative fibrosis is causing 
 
         claimant's current condition.  Claimant's complaints prior to the 
 
         arbitration decision are essentially the same as she had at the 
 
         time of the review-reopening hearing.  There is no medical 
 
         opinion from a physician noting any increase in claimant's 
 
         limitations, or relating any increase to her post-operative 
 
         fibrosis distinct from her original injury.  Claimant describes 
 
         her pain as worse, but there are no medical findings to 
 
         corroborate this and there is no medical evidence to indicate why 
 
         her pain would be worse.  
 
         
 
              Claimant's post-operative fibrosis is a result of her two 
 
         surgeries, both of which occurred prior to the original 
 
         arbitration hearing.  There is no showing that the fibrosis 
 
         following these surgeries was any worse than would normally be 
 
         expected.  An opinion by a physician that claimant had suffered 
 
         an abnormal amount of fibrosis following her surgeries, and that 
 
         this abnormal amount of fibrosis was causing increased pain or 
 
         limitations, might form the basis for a change of condition.  But 
 
         such an opinion is lacking in the record.  Absent such an 
 
         opinion, it must be presumed that normal fibrosis following two 
 
         surgeries and its' normal effects upon a patient were 
 
         contemplated in the original award.  
 
         
 
              Other factors in the record lead to the same conclusion.  
 
         Claimant herself when asked how her symptoms differed after the 
 
         original award as opposed to before the arbitration hearing, 
 
         stated that they were not worse.  Rather, she stated she brought 
 
         this action because they had not gotten better.  Yet, there is no 
 
         evidence claimant was told by a physician her complaints would 
 
         improve.  Claimant bears the burden of proof.
 
         
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         
 
              In addition, the 1991 MRI appears to contradict, or at least 
 
         not confirm, the 1990 MRI claimant bases her review-reopening 
 
         action on.  Thus, even claimant's evidence that post-operative 
 
         fibrosis exists is to some extent less than clear.  
 
         
 
              Finally, claimant's filing of this action so close in time 
 
         to the initial award in arbitration may indicate that this action 
 
         represents as much an attempt to circumvent what was perceived as 
 
         an inadequate award, as it does a genuine change of condition.  
 
         
 
              Claimant has failed to carry her burden of proof to 
 
         establish that she has suffered a substantial change of condition 
 
         subsequent to her prior award.]
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing further from these 
 
         proceedings.
 
         
 
              That defendants shall pay the costs of this matter including 
 
         the transcription of the hearing.
 
         
 
              Signed and filed this ____ day of April, 1993.
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 3rd Avenue
 
         P O Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
            
 
 
 
                   
 
                                             1404; 1804
 
                                             Filed April 30, 1993
 
                                             BYRON K. ORTON
 
                           
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BETTY HAMMER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 888785
 
            CLARINDA TREATMENT CENTER,    :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1404; 1804
 
            
 
            Claimant's fibrosis from surgery was not shown to have been 
 
            unanticipated or that the condition had failed to improve as 
 
            expected.  Claimant acknowledged her condition was the same 
 
            as prior to the arbitration decision.  Claimant filed her 
 
            review-reopening action a short time after the arbitration 
 
            decision.  Held that claimant had failed to carry her burden 
 
            of proof to show a change of condition.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY HAMMER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                            File Nos. 888785 & 821621
 
         CLARINDA TREATMENT CENTER,
 
                                            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.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Betty Hammer, 
 
         claimant, against the Clarinda Treatment Center, employer, and 
 
         the State of Iowa, self-insured, defendant.  The cases were heard 
 
         by the undersigned on January 17, 1990, in Council Bluffs, Iowa.
 
         
 
              During the hearing, claimant withdrew her claim under file 
 
         number 821621.  The matter is hereby considered dismissed.
 
         
 
              The record consists of joint exhibits 1 to 102.  
 
         Additionally, the record consists of the testimony of claimant, 
 
         as well as the testimonies of Dorothy Journey, Greg Hammer, Becky 
 
         Shilhanek and Laura Harms.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on January 17, 1990, the issues presented by the parties 
 
         are:
 
         
 
              1. Whether claimant is entitled to temporary disability/ 
 
         healing period benefits or permanent partial or total disability 
 
         benefits; and,
 
         
 
              2. Whether claimant is entitled to medical benefits under 
 
         section  85.27.
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                   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. That claimant sustained an injury on November 7, 1985, 
 
         which arose out of and in the course of employment with employer;
 
         
 
              3. That the alleged injury is a cause of temporary and 
 
         permanent disability;
 
         
 
              4. That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole;
 
         
 
              5. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $182.49 per week;
 
         
 
              6. Defendant paid and is entitled to a credit under section 
 
         85.38(2) for previous payment of the following benefits under a 
 
         non-occupational group plan: long-term disability income in the 
 
         amount of $8,115.58; and,
 
         
 
              7. Defendant paid claimant 141 6/7 weeks of compensation at 
 
         the rate of $182.49 per week prior to hearing.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 51 years old.  She has a GED and she has taken 
 
         college course work, but she holds no degree.
 
         
 
              Claimant commenced her employment with defendant on 
 
         September 6, 1976.  She was hired as a mental health 
 
         worker/resident treatment worker.  Claimant described her duties 
 
         as supervising residents, giving medication, transporting 
 
         residents and generally caring for residents.  According to her 
 
         testimony, claimant was required to lift a minimum of 150 pounds, 
 
         turn residents, feed and bathe them and minimize altercations 
 
         with residents.
 
         
 
              Claimant related the work injury on November 7, 1985.  She 
 
         reported there was an altercation between a resident and her.  
 
         The resident was ambulatory and he buckled his knees while 
 
         claimant was transporting him.  Claimant stated she supported the 
 
         patient back to his room with another employee.  Claimant 
 
         reported she felt excruciating pain in her low back and down her 
 
         leg, but she continued to work.
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
              Claimant testified she eventually had surgery on April 6, 
 
         1986.  She indicated she returned to work on*October 11, 1986 
 
         where she was assigned to the substance abuse unit, a lighter 
 
         duty position.  Claimant stated she worked on this unit until 
 
         October of 1988, when she reported to her supervisor that her 
 
         pain was intolerable and claimant was unable to continue working.
 
         
 
              Claimant related she had a second surgery on October 7, 1988 
 
         and that this surgery only relieved claimant's leg pain.  
 
         Claimant testified she attempted therapy through Back Care, Inc., 
 
         but she was unable to complete therapy on one of the machines.  
 
         As a consequence, claimant reported she was dropped from the 
 
         program, but she was not told she could return to work.
 
         
 
              Claimant also testified she returned to the treatment 
 
         complex so she could be placed on a recall list.  She stated she 
 
         was terminated on March 6, 1989 and that she was notified by 
 
         letter that her position was filled and she was no longer on the 
 
         payroll.
 
         
 
              Claimant testified she had not sought employment in either 
 
         Clarinda or in Omaha because she was not a reliable employee and 
 
         she was unfit to look for work.  She reported she had not sought 
 
         employment since April of 1986.  She also reported she was not 
 
         able to engage in vocational rehabilitation or to work in any 
 
         capacity.
 
         
 
              Dorothy Journey testified at the hearing.  She stated she 
 
         was a good friend of claimant.  She also testified that on 
 
         September 11, 1986, at the Leisure Lounge, claimant waltzed for 
 
         approximately one minute but she voiced complaints of pain and 
 
         stopped.
 
         
 
              Greg Hammer, son of claimant, testified.  He testified that 
 
         since October of 1988, claimant's activities had been limited.  
 
         She, according to his testimony, could only walk for a 30 minute 
 
         duration.
 
         
 
              Becky Shilhanek testified for defendant.  She stated she had 
 
         been the director of nursing at Clarinda for four to five years 
 
         and she was claimant's supervisor.  Ms. Shilhanek indicated she 
 
         was aware of both of claimant's surgeries.  The director of 
 
         nursing testified claimant informed her she was in constant pain 
 
         and could not take the sitting and standing on the alcohol and 
 
         drug unit.
 
         
 
              Ms. Shilhanek indicated a position on the alcohol and drug 
 
         unit did not require bending and lifting and an employee was free 
 
         to move about the unit.  The director of nursing further 
 
         indicated claimant was released to return to work in April of 
 
         1989, but claimant did not do so.  Rather, claimant obtained 
 
         benefits
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER 
 
         Page 4
 
         
 
         
 
         through the long-term disability policy and she was dropped from 
 
         the payroll effective with the date of the disability benefits.  
 
         According to Ms. Shilhanek, claimant had recall rights whenever 
 
         she was released from her physician's care.
 
         
 
              Finally, the witness-testified that claimant could have 
 
         returned to work in,the substance abuse unit.
 
         
 
              Laura Harms testified she was claimant's supervisor from 
 
         April of 1988 to October of 1988 and claimant's duties at this 
 
         time were of the light duty nature.  Ms. Harms testified claimant 
 
         never appeared to be suffering from back pain and that claimant 
 
         was dancing the jitterbug on the day before her first surgery.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER 
 
         Page 5
 
         
 
         
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age.a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101 (Iowa 1985), 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 a case 
 
         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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 6
 
         
 
         
 
              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 
 
              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).
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to address is the extent of permanent 
 
         partial disability benefits to which claimant is entitled.  R. 
 
         Schuyler Gooding, M.D., a treating physician, assessed a 15 
 
         percent functional impairment to claimant's condition.  However, 
 
         his rating was performed after the first surgery and before the 
 
         second one.  Frank P. LaMarte, M.D., determined claimant had an 
 
         18 percent functional impairment.  Dr. LaMarte also determined 
 
         claimant was employable with the following instructions:
 
         
 
              1. No frequent or continuous bending, twisting or stooping.
 
              2. No lifting greater than 15 pounds more than six times per 
 
         hour.
 
              3. Ability to alternate sitting and standing as needed '
 
              4. Work four hours per day, five days per week, for the 
 
         first month and                    advance one hour each day per 
 
         month, as tolerated, until she has              reached an eight 
 
         hour day.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 7
 
         
 
         
 
              Another treating physician, Leslie C. Hellbusch, M.D., 
 
         determined claimant had a 25 percent functional impairment.  He 
 
         opined claimant was under the subsequent restrictions:
 
         
 
              I have recommended that she have a permanent twenty pound 
 
              lifting restriction and that she should have no repetitive 
 
              bending of her lower back.  It would be best for her to be 
 
              allowed to move from a sitting to a standing position and 
 
              vice versa on the job as needed.  She has had some 
 
              experience working on "substance abuse" and states that she 
 
              can do this type of work and that it is within the 
 
              restrictions placed on her.  I have encouraged her to 
 
              gradually increase her walking activity and have encouraged 
 
              her to try to get back to work in April of 1989.
 
         
 
              Ernest M. Found, Jr., M.D., and assistant professor at the 
 
         Spine Diagnostic and Treatment Center at the University of Iowa 
 
         Hospitals and Clinics did not assess a functional impairment.  He 
 
         did recommend the following:
 
         
 
              1)  During your functional capacity assessment you declined 
 
              to do many of the activities in spite of having been told 
 
              that your lack of participation would be documented.  
 
              Because you completed so few of the tasks that are required 
 
              for such an evaluation, we have no information on which to 
 
              base recommendations regarding your current abilities or 
 
              limitations.
 
              
 
              2)  During your cardiovascular evaluation, you were tested 
 
              on the treadmill, however, after three minutes at a very 
 
              minimal level, you stopped the test because you stated that 
 
              you were unable to maintain the expected pace on the 
 
              treadmill due to your back discomfort.  Our therapist was 
 
              not able to do an adequate test, however, based on your 
 
              performance during this testing, you would be suitable for 
 
              only light work tasks.
 
              
 
              3)  You could improve your overall health by discontinuing 
 
              smoking.
 
              
 
              4)  We are unable to do an impairment rating because of your 
 
              lack of compliance with the testing.  Should you need such a 
 
              rating, it would be more appropriate to set up an 
 
              appointment with the surgeon who performed your prior 
 
              surgeries.
 
              
 
              5)  We have no recommendations for your future treatment.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 8
 
         
 
         
 
              John C. Goldner, M.D., did not provide a functional 
 
         impairment rating.  Nevertheless, he opined: "Claimant was 
 
         capable of function[ing] in a job that would be consistent with 
 
         her education, training and experience.  I do not feel that this 
 
         should involve lifting or bending and I have completed the 
 
         medical questionnaire which you provided me in this regard.  I 
 
         feel her condition likely will remain stable although it possibly 
 
         could improve somewhat, perhaps with the use of medications ... "
 
         
 
              After reviewing the medical opinions of the above, it is the 
 
         determination of the undersigned that claimant has a functional 
 
         impairment of 18 percent.
 
         
 
              Claimant asserts she is permanently and totally disabled 
 
         under Guyton.  Such is not the case.  Claimant is capable of 
 
         obtaining employment in a well known branch of the labor market.  
 
         Claimant's long standing treating physician released claimant to 
 
         work in the substance abuse unit at Clarinda on April 29, 1989.  
 
         No physician stated claimant was incapable of working.  Claimant 
 
         did not return to work.  This was a personal decision.  She did 
 
         not even complete the requisite forms so she could be placed on a 
 
         recall list at Clarinda.
 
         
 
              Only James T. Rogers, a certified professional counselor, 
 
         opined claimant is unemployable.  He attributed the 
 
         unemployability to claimant's subjective complaints of pain and 
 
         not to objective findings.  Not much weight is accorded to Mr. 
 
         Rogers, opinion as he saw claimant on only one occasion.
 
         
 
              Claimant is definitely not motivated to return to her former 
 
         position.  Nor is she motivated to seek other employment.  
 
         Claimant is not even motivated enough to continue her physical 
 
         therapy.  Claimant has two years of college, yet she has made no 
 
         attempt to return to school.
 
         
 
              From the evidence presented, it appears claimant's "anger, 
 
         frustration and bitterness" (Exhibit 1) have interfered with any 
 
         progress she could obtain.  All of claimant's records are filled 
 
         with comments such as, "Betty is very much focused on her pain... 
 
         " (Ex. 3), and:
 
         
 
              (I]t is my impression that the anger, frustration and 
 
              bitterness that Betty Hammer feels at the Iowa Workers, 
 
              Compensation system, the Clarinda Mental Health Institute, 
 
              and the medical system is completely dominating her thoughts 
 
              at this time and she simply could not today, break free from 
 
              this bitterness and anger to discuss any sort of an approach 
 
              which would help to make her more functional.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (Ex. 1)
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 9
 
         
 
         
 
              Therefore, in light of the foregoing, it is the 
 
         determination of the undersigned that claimant has a permanent 
 
         partial disability to the body as a whole in the sum of 20 
 
         percent.  This finding is based upon: 1) the aforementioned 
 
         considerations; 2) based upon the personal observation of 
 
         claimant; 3) based upon claimant's testimony; and 4) based upon 
 
         agency expertise (Iowa Administrative Procedures Act 17A.14(s).
 
         
 
              The next issue to address is the extent of entitlement to 
 
         healing period benefits.  It appears undisputed.  Claimant was 
 
         off work from April 4, 1986 to October 11, 1986, (27 weeks) and 
 
         from October 17, 1988 to the present but claimant was able to 
 
         return to work on April 24, 1988, per Dr. Hellbusch.  It is the 
 
         determination of the undersigned that claimant is entitled to 
 
         55.429 weeks of healing period benefits.
 
         
 
              The final issue to address is the extent of medical benefits 
 
         under section 85.27 to which claimant is entitled.  Claimant is 
 
         seeking payment for the following:
 
         
 
         1.   Methodist Hospital 
 
              8303 Dodge Street 
 
              Omaha, NE 68114
 
              (8/11/88)                       $  455.00
 
              (9/9/88 -9/14/88)            554.00
 
              (10/7/88 -10/11/88)        3,240.04
 
         
 
         2.   Midwest Neurosurgery, P.C. 
 
              8111 Dodge Street, Suite 339 
 
              Omaha, NE 68114
 
              (8/11/88 - 10/7/88)              2,742.00
 
         
 
         3.    The Pathology Center
 
               8300 Dodge Street
 
               Omaha,  NE  68114
 
               (10/7/88)                    42.70
 
          
 
          4.   Center for Diagnostic Imaging
 
               8303 Dodge Street
 
               Omaha,  NE    68114
 
               (8/11/88)                   155.00
 
               (9/9/88)                    211.00
 
               (10/7/88)                    24.00
 
          
 
          5.   The University of Iowa Hospitals
 
               and Clinics
 
              (11/30/89)                          67.75
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              TOTAL                           $7,491.49
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 10
 
         
 
         
 
              The expenses appear necessary and reasonable.  It is true 
 
         claimant did not notify defendant until the "eleventh hour" of 
 
         her pending surgery by Dr. Hellbusch.  Nevertheless, defendant 
 
         did not voice any complaints to treatment by Dr. Hellbusch or any 
 
         of the above.  It is the decision of this deputy industrial 
 
         commissioner that defendant acquiesced to the medical treatment.  
 
         Therefore, defendant is liable for the above expenses.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the stipulations, the evidence 
 
         presented and the principles of law previously stated, the 
 
         following findings of fact and conclusions of law are made:
 
         
 
              Finding 1. Claimant withdrew file number 821621 during the 
 
         hearing.
 
         
 
              Conclusion A. Claimant takes nothing from file number 
 
         821621.
 
         
 
              Finding 2. Claimant has proven by a preponderance of the 
 
         evidence that she has a functional impairment of 18 percent as a 
 
         result of her work injury on November 7, 1985.
 
         
 
              Finding 3. Claimant had surgeries in 1986 and in 1988.
 
         
 
              Finding 4. Claimant was released to return to work on April 
 
         24, 1989, by her treating physician, Dr. Hellbusch.
 
         
 
              Finding 5. Claimant did not return to work on April 24, 
 
         1989, or on any date subsequent.
 
         
 
              Finding 6. Claimant is capable of maintaining meaningful 
 
         employment.
 
         
 
              Conclusion B. Claimant has met her burden of proving she has 
 
         a 20 percent permanent partial disability attributable to her 
 
         work injury on November 7, 1985.
 
         
 
              Conclusion C. Claimant has met her burden of providing she 
 
         is entitled to healing period benefits for 55.429 weeks.
 
         
 
              Finding 7. Claimant has incurred medical expenses as 
 
         follows:
 
         
 
         1.   Methodist Hospital
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              8303 Dodge Street
 
              Omaha, NE  68114
 
               (8/11/88)                 $ 455.00
 
               (9/9/88 - 9/14/88)          554.00
 
               (10/7/88 - 10/11/88)      3,240.04
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 11
 
         
 
         
 
         2.   Midwest Neurosurgery, P.C.
 
              8111 Dodge Street, Suite 339 
 
              Omaha,.NE 68114
 
              (8/11/88 - 10/7/88)                        2,742.00
 
         
 
         3.   The Pathology Center 
 
              8300 Dodge Street 
 
              Omaha, NE 68114
 
              (10/7/88)                                     42.70
 
         
 
         4.   Center for Diagnostic Imaging
 
              8303 Dodge Street
 
              Omaha, NE 68114 
 
              (8/11/88)                              155.00 
 
              (9/9/88)                               211.00 
 
              (10/7/88)                               24.00
 
         
 
         5.   The University of Iowa Hospitals
 
              and clinics
 
              (11/30/89)                                    67.75
 
         
 
              TOTAL                                     $7,491.49
 
         
 
              Conclusion D. Defendant is liable for the aforementioned 
 
         medical expenses.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, with respect to file 821621, claimant will take 
 
         nothing from these proceedings.
 
         
 
              THEREFORE, with respect to file 888785, defendant is to pay, 
 
         unto claimant one hundred (100) weeks of permanent partial 
 
         disability benefits at the stipulated rate of one hundred 
 
         eighty-two and 49/100 dollars (182.49) per week as a result of 
 
         the injury on November 7, 1985.
 
         
 
              Defendant is to also pay unto claimant fifty-five point 
 
         four-two-nine (55.429) weeks of healing period benefits at the 
 
         stipulated rate of one hundred eighty-two and 49/100 dollars 
 
         ($182.49) per week as a result of the injury on November 7, 1985.
 
         
 
              Defendant is responsible for medical benefits in the sum of 
 
         seven thousand four hundred ninety-one and 49/100 dollars 
 
         (7,491.49).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid claimant as stipulated by the parties.
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 12
 
         
 
         
 
              Costs of file number 821621 are assessed to claimant.
 
         
 
              Costs of file number 888785 are assessed to defendant.  The 
 
         following costs are allowed:
 
         
 
              1. August 1988 to Midwest Neurosurgery for medical report 
 
              $80.00;
 
              
 
              2. September 1988 to Midwest Neurosurgery for medical report 
 
              - $40.00;
 
              
 
              3. November 17, 1988 to Iowa Industrial commissioner for 
 
              filing fee - $65.00;
 
              
 
              4. March 9, 1989 to Blair and Associates for deposition 
 
              $59.15;
 
              
 
              5. March 17, 1989 to Midwest Neurosurgery for medical report 
 
              - $30.00;
 
              
 
              6. October 18, 1989 to Midwest Neurosurgery for medical 
 
              report - $20.00;
 
              
 
              7. October 20, 1989 to Midlands Rehabilitation for 
 
              evaluation and report - $150.00;
 
              
 
              8. January 12, 1990 to Blair and Associates for deposition 
 
              $31.00;
 
              
 
              9. January 15, 1990 to Kwik Kopy for photocopies of Exhibits 
 
              - $164.94
 
              
 
                 TOTAL - $640.09
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
         
 
              Signed and filed this 26th day of March, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         HAMMER V. CLARINDA TREATMENT CENTER
 
         Page 13
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Ave
 
         P 0 Box 1588
 
         Council Bluffs  IA  51502
 
         
 
         Ms. Joanne Moeller 
 
         Assistant Attorney General 
 
         Hoover State Office Bldg
 
         Des Moines IA 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803; 2900
 
                                         Filed March 26, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY HAMMER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File Nos. 888785 & 821621
 
         
 
         CLARINDA TREATMENT CENTER,
 
                                         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.
 
         
 
         
 
         
 
         2900
 
         
 
              Claimant withdrew her claim for file number 821621 at the 
 
         hearing.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 20 percent permanent partial disability 
 
         where claimant was functionally impaired in the amount of 18 
 
         percent.  Claimant was released to return to work by her treating 
 
         physician.  However, claimant voluntarily determined not to 
 
         return.  Claimant was totally unmotivated to seek employment or 
 
         to return to college.  Claimant held not odd-lot employee under 
 
         Guyton.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN M. GERDES,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888788
 
            DETERMANN INDUSTRIES, INC.,   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY           :
 
            CORPORATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Steven 
 
            M. Gerdes, claimant, against Determann Industries, Inc., 
 
            employer (hereinafter referred to as Determann), and 
 
            Bituminous Casualty Corporation, insurance carrier,  defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on September 24, 1988.  On December 19, 1990, 
 
            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 con
 
            tested 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 received 
 
            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 Determann at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from October 1, 1988 through March 
 
            27, 1989, and defendants agree that claimant was not working 
 
            during this period of time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin as of March 28, 1989.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $257.07.
 
            
 
                 6.  The medical bills submitted by claimant were fair 
 
            and reasonable but their causal connection to a work injury 
 
            remained at issue.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during the 
 
            hearing as to whether an injury, in fact, occurred and its 
 
            nature and extent.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Determann since September 1980 
 
            and continues to do so at the present time.  Claimant is a 
 
            warehouseman and operator of a fork lift.  Claimant's job 
 
            has not changed as a result of the injury.  Claimant was 
 
            aware at the time of the injury that he was to report a work 
 
            injury to his superiors at Determann.
 
            
 
                 On or about September 24, 1988, claimant suffered an 
 
            injury to his low back which arose out of and in the course 
 
            of his employment at Determann.  The injury was a herniated 
 
            disc between two vertebrae in the low back.  The herniation 
 
            occurred as a result of twisting and pulling on a railroad 
 
            car door the claimant was about to unload.  Defendants con
 
            tend that the incident did not happen.  There is no witness 
 
            as claimant's fellow worker was briefly absent from the 
 
            scene to do paperwork in an office area.
 
            
 
                 The finding of a work injury is based substantially 
 
            upon claimant's credibility and that claimant's account of 
 
            the incident is compatible with the description of the 
 
            injury by his treating orthopedic surgeon, Jay P. Ginther, 
 
            M.D.  All of Dr. Ginther's views are uncontroverted in the 
 
            record.  Claimant testified that he felt a pull in his back 
 
            during the door incident but he believed that the condition 
 
            was not serious and he continued working.  He stated that he 
 
            believes that he told his foreman that day but that his 
 
            foreman did not take the report seriously or forgot about 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            it.  Claimant said that over the next few days he continued 
 
            working but that his back continued to bother him.  His 
 
            activity not only consisted of work duties of bending and 
 
            lifting but automotive work at home which also involved 
 
            bending and some lifting.  Claimant denies any heavy lifting 
 
            while performing this home activity.  Claimant's neighbor 
 
            verified that claimant complained of the door incident at 
 
            work after the incident while he was assisting claimant in 
 
            performing the auto repair work at home.  This neighbor also 
 
            verified claimant continued to have some back problems and 
 
            did not lift heavy objects during his home activities.
 
            
 
                 Defendants' position is based upon the delay between 
 
            the door opening incident that occurred on a Saturday and 
 
            the onset of severe pain on the following Friday.  Claimant 
 
            did not seek treatment until the Saturday after the onset of 
 
            severe pain, one week after the door incident.  Also, the 
 
            terminal manager at Determann testified that claimant did 
 
            not tell him of any injury when claimant called in to tell 
 
            him that he would not be reporting to work due to back and 
 
            leg problems.  Defendants' position was not convincing.  As 
 
            explained by Dr. Ginther, the door incident probably rup
 
            tured the disc but it was not until a period of time later 
 
            that the disc fragment migrated to an area which would cause 
 
            severe pain.  This migration would be the result of physical 
 
            activity such as bending during the intervening days.  
 
            However, Dr. Ginther was clear that the critical problem was 
 
            the ruptured disc fragment and not the activity causing the 
 
            fragment to migrate.  With reference to the terminal man
 
            ager's testimony, it is conceivable that he would have a 
 
            foggy memory of the incident.  However, it also would not be 
 
            unusual for claimant to not know what had happened and would 
 
            not realize that he had suffered an actual injury.  Also, 
 
            claimant saw his physician on the same day he talked to the 
 
            terminal manager and clearly reported the incident with the 
 
            door.
 
            
 
                 The injury of September 24, 1988, was a cause of 
 
            claimant's absence from work as stipulated from October 1, 
 
            1988 through March 27, 1989.  Following his first office 
 
            visit to the Bluff Medical Clinic on October 1, 1988, 
 
            claimant was treated primarily by Dr. Ginther who eventually 
 
            surgically repaired the ruptured disc on October 10, 1988.  
 
            Following surgery, claimant underwent an extensive physical 
 
            therapy and work hardening program which gradually improved 
 
            his condition.  Claimant was released to light duty work on 
 
            March 28, 1989.  Claimant's restrictions were gradually 
 
            relaxed over the next several months following his return to 
 
            work.
 
            
 
                 As a result of the work injury of September 24, 1988, 
 
            claimant has a 10 percent permanent partial impairment to 
 
            the body as a whole.  Also, as a result of the injury, 
 
            claimant has incurred permanent restrictions upon his activ
 
            ity by Dr. Ginther consisting now of no lifting over 60 
 
            pounds and no heavy impact activity.  Claimant had no his
 
            tory of back problems before September 24, 1988.  Claimant 
 
            currently suffers regular muscle spasms and occasional back 
 
            and leg pain.  Claimant continues to suffer swelling of his 
 
            foot.  All of this is due to the work injury according to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Ginther.  Claimant is severely restricted in his outside 
 
            work/sporting activities and auto repair work.
 
            
 
                 As a result of the work injury of September 24, 1988, 
 
            and the resulting permanent partial impairment, claimant has 
 
            suffered a 10 percent loss of earning capacity.  The fact 
 
            that the percentage of loss of earning capacity coincides 
 
            with the permanent partial impairment finding is only coin
 
            cidental.  Claimant's medical condition before the work 
 
            injury was excellent and he had no functional impairment or 
 
            ascertainable disabilities.  Claimant has able to fully per
 
            form physical tasks involving heavy and repetitive lifting, 
 
            bending, twisting and stooping.  Due to the injury and phys
 
            ical limitations, claimant's medical condition prevents him 
 
            from performing very heavy work.  However, claimant is 32 
 
            years of age and relatively young.  He had a good result 
 
            from the surgery.  Claimant has a high school education.  
 
            Claimant's past employment primarily consists of warehouse
 
            man and general laborer work but claimant is able to perform 
 
            such work if it does not require lifting over 60 pounds.  
 
            Claimant was able to return to work and now is earning 
 
            higher wages than he earned at the time of the injury.  
 
            Claimant regularly works in excess of 40 hours a week and 
 
            sometimes up to 60 hours a week.  Claimant is able to per
 
            form all assigned work albeit with pain in the evening 
 
            hours.  Claimant is not under active medical treatment and 
 
            takes no prescription medications.  Claimant currently 
 
            appears to be engaged in suitable and stable employment.
 
            
 
                 The medical expenses listed in the prehearing report 
 
            are found to be reasonable and necessary treatment of the 
 
            work injury of September 24, 1988.  These expenses consist 
 
            of treatment received by claimant from Dr. Ginther or treat
 
            ment provided to claimant under the direction of Dr. 
 
            Ginther.  Defendants have denied liability for this injury 
 
            since the initial claim in October of 1988.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance 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.
 
            
 
                 In the case sub judice, claimant established a work 
 
            injury based upon his credible testimony and its consistency 
 
            with the medical opinion offered in this case.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 10 percent loss of his earning capacity as a 
 
            result of the work injury.  Based upon such a finding of 
 
            fact, claimant is entitled as a matter of law to 50 weeks of 
 
            permanent partial disability benefits under Iowa Code sec
 
            tion 85.34(2)(u) which is 10 percent of 500 weeks, the maxi
 
            mum allowable for an injury to the body as a whole in that 
 
            statutory subsection.
 
            
 
                 Claimant is also entitled to weekly benefits for heal
 
            ing period under Iowa Code section 85.34 from the date of 
 
            injury until he returns to work; until he is medically capa
 
            ble of returning to substantially similar work; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Healing period 
 
            benefits will be awarded for the period of time stipulated 
 
            by the parties that claimant was off work as it was found 
 
            that this absence from work was due to the work injury.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendants to make such pay
 
            ment.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  The 
 
            expenses listed in the prehearing report were found causally 
 
            connected to the injury and will be awarded.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred fifty-seven and 07/l00 dollars ($257.07) per week 
 
            from March 28, 1989.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from October 1, 1988 through March 27, 1989, at the 
 
            rate of two hundred fifty-seven and 07/l00 dollars ($257.07) 
 
            per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendants shall receive a credit for previous pay
 
            ments of weekly medical benefits under a non-occupational 
 
            group insurance plan under Iowa Code section 85.38(2), less 
 
            any tax deductions from those payments and any attorney lien 
 
            upon the recovered medical expenses.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 7.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 So LaSalle St
 
            Suite 1527
 
            Chicago  IL  60603
 
            
 
            Ms. Vicki L. Seeck
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed April 25, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN M. GERDES,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888788
 
            DETERMANN INDUSTRIES, INC.,   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY           :
 
            CORPORATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Nonprecedential
 
            Extent of disability benefits.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ALLEN R. SANDERS,     
 
                     
 
              Claimant,   
 
                     
 
         vs.                               File Nos. 1002289/888800
 
                                                      929385
 
         SUPER VALU STORES, INC.,   
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 1, 1994 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of June, 1994.
 
         
 
         
 
                                    ________________________________
 
                                    BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Kevin Kirlin
 
         Attorney at Law
 
         535 Insurance Exchange Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         418 6th Ave.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed June 22, 1994
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ALLEN R. SANDERS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.                           File Nos. 1002289/888800
 
                                                     929385
 
            SUPER VALU STORES, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ALLEN R. SANDERS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 1002289
 
            vs.                           :                888800
 
                                          :                929385
 
            SUPER VALU STORES, INC.,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These consolidated cases are upon petitions in 
 
            arbitration filed by claimant Allen R. Sanders against 
 
            employer Super Valu Stores, Inc., and its insurance carrier, 
 
            Liberty Mutual Insurance Company.  Claimant sustained 
 
            injuries arising out of and in the course of employment 
 
            September 1, 1988 (888800), September 7, 1989 (929385), and 
 
            claims that he also did so on May 13, 1991 (1002289).  A 
 
            hearing was accordingly held in Des Moines, Iowa on December 
 
            7, 1993.  The record consists of defendants' exhibits A-E, 
 
            claimant's exhibits 16-20, and the testimony of claimant, 
 
            George Pike and William Hart.
 
            
 
                 Claimant's exhibit 20 consists of a letter written by 
 
            claimant's attorney to a physician.  The exhibit was 
 
            admitted over objection, since it met the rather minimal 
 
            requirements of Iowa Code section 17A.14(1), as it is not 
 
            irrelevant, immaterial or unduly repetitious.  It is, 
 
            however, self serving and a form of manufactured evidence.  
 
            In evaluating the evidence, claimant's exhibit 20 has not 
 
            been accorded substantial weight.
 
            
 
                 Prior to hearing, the parties filed a joint motion for 
 
            protective order.  With one slight modification, the joint 
 
            motion was sustained at hearing.
 
            
 
                                     ISSUES
 
            
 
                 The parties entered into the following stipulations:
 
            
 
                    1.  An employment relationship existed 
 
                    between claimant and Super Valu Stores at 
 
                    the time of each alleged injury;
 
            
 
                    2.  Claimant sustained injury arising out of 
 
                    and in the course of that employment on 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    September 1, 1988 and September 7, 1989;
 
            
 
                    3.  The 1988 and 1989 injuries each caused 
 
                    temporary disability;
 
            
 
                    4.  Although the parties dispute the 
 
                    appropriate rate of compensation and whether 
 
                    various periods of disability are 
 
                    attributable to the 1988 injury, as opposed 
 
                    to the 1989 injury or the 1991 claimed 
 
                    injury, claimant is entitled to temporary 
 
                    total disability or healing period benefits 
 
                    from September 2 through September 25, 1988; 
 
                    October 3, 1988 through January 10, 1989; 
 
                    January 22 through January 24, 1989; 
 
                    September 14, 1989 through February 6, 1990; 
 
                    June 13 through July 30, 1991; August 6 
 
                    through December 3, 1991; 
 
            
 
                    5.  Permanent disability, if any, should be 
 
                    compensated industrially commencing February 
 
                    28, 1989;
 
            
 
                    6.  Claimant was at all relevant times 
 
                    married and entitled to four exemptions;
 
            
 
                    7.  Medical benefits are not in dispute;
 
            
 
                    8.  Defendants voluntarily paid certain 
 
                    benefits prior to hearing and are entitled 
 
                    to credit.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment on May 13, 1991;
 
            
 
                    2.  Whether the 1991 claimed injury caused 
 
                    temporary disability;
 
            
 
                    3.  Whether any or all injuries caused 
 
                    permanent disability;
 
            
 
                    4.  The extent of permanent industrial 
 
                    disability, if any,
 
            
 
                    5.  The rate of compensation applicable in 
 
                    each contested case.
 
            
 
                 Although this consolidated case involves allegations of 
 
            three separate injuries, claimant takes the position that 
 
            all temporary and permanent disability is attributable to 
 
            the 1988 claim and that the 1989 and 1991 claims are in the 
 
            nature of temporary exacerbations causally connected to the 
 
            original injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Allen Sanders, 40 years of age at hearing, is a high 
 
            school graduate without further education except for 
 
            military and on-the-job training.  Mr. Sanders served in the 
 
            United States Air Force from 1973 to 1975, and performed 
 
            relatively simple procedures as a mechanic, including 
 
            changing tires and checking oil, but not including repair of 
 
            aircraft engines.
 
            
 
                 Claimant started working in the Super Value Stores 
 
            warehouse in October 1970 while still in high school.  
 
            Except for his active duty stint in the air force, he has 
 
            remained so employed to the present day.
 
            
 
                 Super Valu Stores is a supermarket chain supplied from 
 
            its own warehouse.  Bid jobs in the warehouse facility 
 
            include several kinds of order filler, forklift operators, 
 
            loading dock workers, repack workers, sanitation, and 
 
            trailer cleaners.  Some jobs require substantially more 
 
            lifting than others and involve varying amounts of both 
 
            compulsory and voluntary overtime hours.  Some jobs are 
 
            scheduled for five eight-hour days, while others are 
 
            scheduled for four ten-hour days.  Bidding for jobs is on 
 
            the basis of seniority.  Even after his many years of 
 
            service, claimant is only number 95 in seniority (as of 
 
            November 9, 1993, 272 employees were on the seniority list).
 
            
 
                 Claimant was originally injured on September 1, 1988, 
 
            while substituting as a forklift operator (his bid job at 
 
            that time was as a grocery order filler).  While pulling an 
 
            empty pallet by hand, in a bent position, claimant developed 
 
            a "catch" in his lower back so severe as to drop him to the 
 
            floor.  He was referred to the Iowa Methodist Occupational 
 
            Medicine Clinic, where he has since been seen by a 
 
            succession of physicians.  Initial complaints were of 
 
            radiating pain down the right leg, but also some in the left 
 
            leg.  Mr. Sanders was eventually found to have a herniated 
 
            lumbar disc at L5-S1, and underwent a right-sided 
 
            hemilaminectomy and disc excision at the hands of Dr. David 
 
            J. Boarini on October 25, 1988.  Dr. Boarini eventually 
 
            rated impairment as five percent of the body as whole.  
 
            Claimant returned to work in January 1989, again as an order 
 
            filler.  Unfortunately, he has continued to suffer back pain 
 
            to the present time.
 
            
 
                 A second incident occurred on September 7, 1989, while 
 
            claimant was substituting in meat and dairy receiving (his 
 
            bid job being grocery order filler).  He developed pain in 
 
            the lower back while merely reaching down to put a sticker 
 
            on a pallet.  By the next day, pain was substantially 
 
            increased.
 
            
 
                 Claimant was again treated by Dr. Boarini and was off 
 
            work until February 6, 1990.  Dr. Boarini has opined that 
 
            the September 1989 injury caused no permanent injury or 
 
            increased permanent impairment.
 
            
 
                 The claimed injury of May 13, 1991, did not involve a 
 
            specific traumatic incident.  Rather, while claimant was 
 
            working on the loading dock, he found symptoms gradually 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            worsening.  He was at this time treated by Michael J. 
 
            Makowsky, M.D., of the same occupational medicine group.  
 
            Dr. Makowsky, an occupational medicine specialist, testified 
 
            by deposition on October 21, 1993. 
 
            
 
                 In June 1991, Dr. Makowsky found a limited range of 
 
            motion at the waist and in forward flexion, with other range 
 
            of motion in the back untestable because of claimant's pain.  
 
            Straight leg raising was positive on the right and showed 
 
            back pain on the left, but without radiation.  A repeat 
 
            magnetic resonance imaging scan was performed, which was 
 
            again inconclusive (as had been the case in 1989; that is, 
 
            not showing definite change subsequent to the 1988 injury).  
 
            However, in addition to showing possible recurrent 
 
            herniation on the right at L5-S1, the MRI demonstrated some 
 
            degenerative disc disease at L3-4 and L4-5.  Dr. Makowsky 
 
            also believes there is scarring as a result of the 1988 
 
            laminectomy.
 
            
 
                 Dr. Makowsky initially felt that claimant had a back 
 
            strain or muscle strain in 1991, but eventually concluded 
 
            that claimant's symptoms were probably related to the 
 
            previous laminectomy and disc surgery.  He found MRI 
 
            indication of some post-operative scarring at L5-S1 
 
            consistent with positive straight leg raising and an EMG 
 
            performed in 1991.
 
            
 
                 Dr. Makowsky returned claimant to work without 
 
            limitation except against overtime hours, but testified that 
 
            restrictions would have been imposed except for claimant's 
 
            motivation in wishing to return to work, and the likelihood 
 
            that Super Valu would be unable to meet restrictions.  The 
 
            restriction against overtime hours, while still observed by 
 
            defendants, appears to be no longer in effect.
 
            
 
                 Dr. Makowsky suggested the following permanent 
 
            restrictions: light or medium employment, maximum lifting of 
 
            35 pounds, maximum repetitive lifting of 20 pounds, no stair 
 
            climbing of more than two flights at a time or at a rapid 
 
            pace, and no repetitive bending.  
 
            
 
                 Dr. Makowsky also testified that claimant's current 
 
            condition and restrictions are related to the 1988 injury, 
 
            not the 1989 injury or the claimed 1991 injury.  He assessed 
 
            a ten percent impairment rating to the body as a whole 
 
            related to both the laminectomy and its residuals.
 
            
 
                 Claimant had a number of episodes of back pain between 
 
            1981 and 1986, at all times returning to work without 
 
            medical restriction.  Dr. Makowsky did not believe any of 
 
            these episodes would effect his opinions as set forth in his 
 
            deposition.
 
            
 
                 In 1993, Super Valu Stores changed to a different 
 
            medical group for authorized treatment.  Accordingly, 
 
            claimant has since been seen by Dr. James Blessman.  Dr. 
 
            Blessman's chart notes of November 2, 1993, indicated a 
 
            recommended restriction against lifting in excess of 50 
 
            pounds; claimant to be rechecked in one year to consider 
 
            permanent restrictions.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The parties have stipulated to injury arising out of 
 
            and in the course of employment in 1988 and 1989.  The 
 
            record tends to show that both the 1989 and 1991 periods of 
 
            temporary disability are related to and residuals of the 
 
            1988 injury, rather than any "new" injury.  The 1989 
 
            incident involved merely bending over.  The work activity 
 
            associated with that recurrence is arguably inconsistent 
 
            with compensable injury.  That is to say, work merely 
 
            provided the stage where symptoms recurred, since bending 
 
            over is a commonplace activity in the ordinary affairs of 
 
            non-employment life.  The 1991 "injury" was not related to 
 
            any traumatic incident at work.  Based on these facts and 
 
            the opinions of Dr. Boarini and Dr. Makowsky, it is held 
 
            that all periods of temporary disability and permanent 
 
            disability are causally related to the 1988 injury alone.
 
            
 
                 The parties have stipulated to the extent of temporary 
 
            disability, all of which will be assessed to the 1988 
 
            injury:  September 2 through September 25, 1988; October 3, 
 
            1988 to January 10, 1989; January 22, 1989 to January 24, 
 
            1989; September 14, 1989 to February 6, 1990; June 13, 1991 
 
            to July 30, 1991; August 6, 1991 to December 3, 1991.  This 
 
            totals 62 weeks, 6 days.
 
            
 
                 The parties have stipulated to a marital status of 
 
            married and entitlement to four exemptions along with a 
 
            gross weekly wage of $379.33 in 1988.  Accordingly, the 
 
            proper rate of compensation is $248.64.
 
            
 
                 Claimant has worked his entire career at various jobs 
 
            at Super Valu.  Although he has restrictions, Super Valu has 
 
            very commendably been able to keep him working.  Likewise, 
 
            claimant's motivation has commendably kept him working even 
 

 
            
 
            Page   6
 
            
 
            
 
            in pain.  However, it is clear that his medical restrictions 
 
            and history of surgical treatment will limit his earning 
 
            capacity vis-a-vis the competitive labor market.  
 
            Considering then these factors, including claimant's age and 
 
            educational background along with his work history, and the 
 
            other evidence shown of record, it is held that Mr. Sanders 
 
            has sustained a permanent industrial disability equivalent 
 
            to 25 percent of the body as a whole, or 125 weeks.  The 
 
            parties' stipulated commencement date for permanent partial 
 
            disability benefits, February 28, 1989, is accepted.  
 
            Payment of permanency benefits is interrupted by the 
 
            subsequent periods of temporary disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In case numbers 929385 and 1002289; claimant shall take 
 
            nothing.
 
            
 
                 In case number 888800:
 
            
 
                 Defendants shall pay unto claimant healing period and 
 
            temporary total disability benefits as set forth above, 
 
            totalling fifteen thousand six hundred twenty-eight and 
 
            76/100 dollars ($15,628.76).
 
            
 
                 Defendants shall pay one hundred twenty-five (125) 
 
            weeks of permanent partial disability benefits commencing 
 
            February 28, 1989.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid to date.
 
            
 
                 Costs of all actions are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Kevin Kirlin
 
            Attorney at Law
 
            535 Insurance Exchange Building
 
            Des Moines Iowa 50309
 
            
 
            Mr Richard G Book
 
            Attorney at Law
 
            500 Liberty Building
 
            418 6th Avenue
 
            Des Moines Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 1, 1994
 
                                            DAVID R. RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ALLEN R. SANDERS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 1002289
 
            vs.                           :                888800
 
                                          :                929385
 
            SUPER VALU STORES, INC.,      :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ALLEN R. SANDERS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 1002289
 
            vs.                           :                888800
 
                                          :                929385
 
            SUPER VALU STORES, INC.,      :
 
                                          :        O R D E R
 
                 Employer,                :
 
                                          :         N U N C
 
            and                           :
 
                                          :          P R O
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :         T U N C
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The arbitration filed February 1, 1994 calculated claimant's 
 
            rate of compensation at $248.64, based upon the parties 
 
            stipulation as to marital status (married), exemptions (4) 
 
            and gross weekly earnings ($379.33).  Claimant's attorney 
 
            has since written to advise that the parties intended the 
 
            stipulation of $379.33 as the compensation rate, rather than 
 
            gross weekly earnings.  Defense attorney has since written 
 
            to state his agreement.
 
            The parties are not entitled to stipulate to a rate of 
 
            compensation, since this is a legal conclusion.  They are 
 
            entitled to stipulate to gross weekly wages, marital status 
 
            and number of exemptions.  The form 2B filed by defendants 
 
            on December 7, 1988 showed a gross weekly wage of $611.13 
 
            and a compensation rate of $379.33.  Fairness requires that 
 
            the arbitration decision be suitably modified.
 
            IT IS THEREFORE ORDERED that the arbitration decision filed 
 
            February 1, 1994 is modified to reflect that the correct 
 
            rate of compensation is $379.33, based upon average gross 
 
            weekly wages of $611.13.  Healing period, temporary total 
 
            disability and permanent partial disability benefits shall 
 
            be paid at the correct rate.
 
            SO ORDERED.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                         ________________________________
 
                                         DAVID R. RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Kevin Kirlin
 
            Attorney at Law
 
            535 Insurance Exchange Building
 
            Des Moines Iowa 50309
 
            
 
            Mr Richard G Book
 
            Attorney at Law
 
            500 Liberty Building
 
            418 6th Avenue
 
            Des Moines Iowa 50309-2421
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID SAMPLE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 888801
 
            UNITED PARCEL SERVICE,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, David Sample, against his employer, United 
 
            Parcel Service, and its insurance carrier, Liberty Mutual 
 
            Insurance Company, defendants.  The case was heard on April 
 
            24, 1990, in Des Moines, Iowa at the office of the 
 
            industrial commissioner.  The record consists of the 
 
            testimony of claimant and the testimony of Todd J. Galloway.  
 
            Additionally, the record consists of joint exhibits 1-23 and 
 
            B 1-13.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is:  1) whether 
 
            claimant is entitled to permanent partial disability 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 34 years old.  He is married with two 
 
            children.  He is a high school graduate.  He holds a 
 
            certificate of completion for courses in adult machine shop.  
 
            He also has an associate of arts degree in electronics.
 
            
 
                 Claimant commenced his employment with defendant on 
 
            April 10, 1979.  Initially, he was a part-time employee.  He 
 
            switched to full time in 1986 or 1987 but after one month, 
 
            claimant voluntarily returned to a part-time status.
 
            
 
                 On July 28, 1988, claimant was loading trucks at 
 
            defendant's establishment.  He testified he picked up a one 
 
            pound package and lifted the package over his head.  He 
 
            placed it on a shelf near the ceiling of the truck when he 
 
            felt a sharp pain in his right shoulder.  As a result, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant dropped his arm to his side.  He reported the 
 
            incident to his supervisor.  One week later claimant was 
 
            sent to Scott Neff, D.O., for medical attention.
 
            
 
                 Claimant had an impingement surgery on October 21, 
 
            1988.  He also had a carpal tunnel syndrome repaired.  He 
 
            was off work through January 19, 1989.  Upon his return to 
 
            work, he was placed in a light duty position where he was 
 
            sorting smaller packages.  Claimant performed some duties 
 
            above his head.  At the time of the injury, claimant was 
 
            earning $13.85 per hour.  On the date of the hearing, 
 
            claimant was earning $14.15 per hour.  Claimant reported he 
 
            worked about the same number of hours at the time of the 
 
            hearing as before his injury.
 
            
 
                 Claimant described the condition of his shoulder as of 
 
            the date of the hearing.  He indicated his shoulder was not 
 
            as strong as it once was, he felt pain in his shoulder and 
 
            the back of his shoulder blade, he felt tightness in his 
 
            neck and shoulder muscles, he experienced headaches and he 
 
            avoided using his right arm and hand.  Claimant also 
 
            testified he took 800 mg of Motrin once or twice a day for 
 
            his pain.
 
            
 
                 Todd Galloway testified at the hearing.  He is the 
 
            center manager for West Delivery Center at UPS.  He 
 
            described claimant's current duties as an air recovery 
 
            clerk.  Claimant is currently required to scan packages and 
 
            to push them aside.  There is additional clerical work 
 
            involved for claimant but not a great deal of lifting.  Mr. 
 
            Galloway determined claimant had been regularly working 
 
            since February of 1989 and that his rate of pay had 
 
            increased by $.30 per hour.  Mr. Galloway was unaware of any 
 
            work restrictions placed upon claimant.  Claimant was 
 
            described as an excellent employee.
 
            
 
                                conclusions of law
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
            Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257 (1963).
 
            
 
                 In Parr v. Nash Finch Co., (appeal decision, October 
 
            31, 1980) the industrial commissioner, after analyzing the 
 
            decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348 (Iowa 1980), stated:
 
            
 
                 Although the court stated that they were looking 
 
                 for the reduction in earning capacity it is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 undeniable that it was the "loss of earnings" 
 
                 caused by the job transfer for reasons related to 
 
                 the injury that the court was indicating justified 
 
                 a finding of "industrial disability."  Therefore, 
 
                 if a worker is placed in a position by his 
 
                 employer after an injury to the body as a whole 
 
                 and because of the injury which results in an 
 
                 actual reduction in earning, it would appear this 
 
                 would justify an award of industrial disability.  
 
                 This would appear to be so even if the worker's 
 
                 "capacity" to earn has not been diminished.
 
            
 
                 The sole issue to address is the type of permanent 
 
            partial disability which claimant has sustained.  Claimant 
 
            contends "he has sustained a body as a whole injury and is 
 
            entitled to have his injury evaluated industrially."  
 
            Defendants maintain claimant has sustained a scheduled 
 
            member injury to the right upper extremity.
 
            
 
                 Claimant's treating physician, Scott B. Neff, D.O., 
 
            rated claimant as having a three percent impairment to the 
 
            right upper extremity.  Dr. Neff, while rating claimant's 
 
            impairment to the upper extremity, did write in his report 
 
            of January 20, 1989:
 
            
 
                 He is complaining also of some paraspinal pain in 
 
                 the cervical spine muscles but some of this I 
 
                 think is simply due to elevation using the upper 
 
                 trapezious area as opposed to straight abduction.
 
            
 
                 Dr. Neff explained his rationale for rating claimant's 
 
            shoulder injury to the right upper extremity rather than to 
 
            the body as a whole.  He wrote in his report of November 5, 
 
            1989:
 
            
 
                 Impingement syndrome decompression does not 
 
                 involve surgery per se on the rotator cuff.  It 
 
                 involves anatomic structures which lie lateral to 
 
                 the gleno-humeral [sic] articulation or the plane 
 
                 of the shoulder joint, and as such, are rated by 
 
                 the AMA Guidelines as to the upper extremity and 
 
                 not to the body as a whole.
 
            
 
                 Claimant was also evaluated by John H. Kelley, M.D.  
 
            Dr. Kelley opined claimant had a five percent permanent 
 
            partial impairment of the right upper extremity which would 
 
            equate to three percent impairment to the body as a whole.  
 
            In his deposition, Dr. Kelley testified to the following 
 
            relative to the type of impairment:
 
            
 
                    Q.  Is the situs of that surgery then confined 
 
                 to the upper extremity, or is it into the body?
 
            
 
                    A.  Well, it's all done on the body side of the 
 
                 shoulder in that it's not done on the arm bone or 
 
                 the humerus.  It's really done on the structures 
 
                 in the shoulder on the body side of the joint.  
 
                 The procedure done on the acromioclavicular joint 
 
                 is really a procedure on the body and has nothing 
 
                 to do at all with the shoulder.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                    Q.  Dr. Kelley, what does the impingement 
 
                 syndrome, this surgery, what does it do?  Does it 
 
                 help a person abduct and flex better?
 
            
 
                        Does it take away the grinding?  In lay 
 
                 terms what does the surgery do?
 
            
 
                    A.  Yes, it relieves the impingement or 
 
                 pinching of the arm bone against bones in the 
 
                 shoulder when the arm is lifted from the side.
 
            
 
                 Dr. Kelley continued with his deposition relative to 
 
            claimant's impairment.  At page 14, Dr. Kelley testified:
 
            
 
                    A.  There is no page in here that specifically 
 
                 relates to this surgery, and there's no specific 
 
                 reference here, that I can find, to disability 
 
                 following a resection of the acromioclavicular 
 
                 joint.
 
            
 
                        The patient's disability that I'm 
 
                 estimating is really based on the fact that there 
 
                 were structures altered in the shoulder, and that 
 
                 inspite [sic] of the fact that the limitation of 
 
                 motion itself does not allow for any disability 
 
                 because he's only limited slightly in abduction 
 
                 and flexion, and not enough really, according to 
 
                 the tables, to provide much of a disability.
 
            
 
                        However, I think that having all these 
 
                 structures altered surgically about the shoulder, 
 
                 he does have a disability of five percent.
 
            
 
                    Q.  When you say five percent, and I may have 
 
                 been confused earlier, you mentioned there was a 
 
                 three percent body as a whole rating?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  And what is the five percent then?
 
            
 
                    A.  That would be of the shoulder, and then I'm 
 
                 converting that to the body as a whole.
 
            
 
                    Q.  When you say the shoulder five percent, you 
 
                 are talking the upper extremity and converting it 
 
                 into the body as a whole?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  And as far as the abduction and flexion 
 
                 that you measured, how much are we talking about 
 
                 in each of those?
 
            
 
                    A.  We're talking about only -- well, I haven't 
 
                 seen him since surgery, so I guess really I can't 
 
                 speak to that.  All I can do is say that I read 
 
                 Dr. Neff's reports, and he estimates that this is 
 
                 the disability, as did Dr. Kirkland, and I would 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 concur with that.
 
            
 
                 Finally, Mark B. Kirkland, D.O., provided an impairment 
 
            rating for claimant.  Dr. Kirkland wrote in his report of 
 
            September 1, 1989:
 
            
 
                 On physical examination he did have a full range 
 
                 of motion of his right shoulder.  He did have a 
 
                 well-healed scar.  He had rather good equal 
 
                 strength against resistance at 90 degrees of 
 
                 abduction and 90 degrees of forward flexion.
 
            
 
                     ...
 
            
 
                 However, technicalities aside I do rate his 
 
                 impairment as five percent to the right upper 
 
                 extremity.  This is based on the rating guide of 
 
                 the American Academy of Orthopaedic Surgeons.  I 
 
                 feel the injury of July 27, 1988 was an 
 
                 aggravation of a pre-existent condition.  I would 
 
                 have Mr. Sample avoid any type of heavy lifting or 
 
                 repetitive activities at shoulder level.
 
            
 
                 It has long been recognized that "an injury to the 
 
            shoulder is an injury to the body as a whole."  Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949).  Nazarenus v. Oscar Mayer & Co., 2 Iowa Indus. 
 
            Comm'r Rep. 170 (Appeal Dec. 1982).  The facts in the 
 
            instant case warrant such a holding.  The surgical incision, 
 
            as described by Dr. Kelley, is upon the body cavity.  It is 
 
            not confined to the right upper extremity.  Claimant's 
 
            physical complaints extend to the neck, head, spinal and 
 
            thoracic areas.  Even Dr. Neff acknowledges problems beyond 
 
            the area of the right upper extremity.  Therefore, it is the 
 
            determination of the undersigned that claimant's permanent 
 
            partial disability is to the body as a whole.  The 
 
            impairment rating equates to three percent of the body as a 
 
            whole.
 
            
 
                 Claimant maintains there has been a loss of earning 
 
            capacity as a result of his work injury.  Claimant was 
 
            refused an electrician's technician position with Xerox 
 
            because he needed surgery to his left shoulder.  The 
 
            position actually paid less than what claimant earned at 
 
            defendant's establishment.  Claimant has sustained a minor 
 
            loss of earning capacity given the fact claimant is unable 
 
            to work above shoulder level.  Certain positions within 
 
            defendant's corporate structure are now outside of 
 
            claimant's physical capabilities.  Claimant has received all 
 
            pay raises due to him.  His injury has not resulted in an 
 
            actual loss in hourly pay rate.  Claimant's age is working 
 
            in his favor, as well as his education and training.  
 
            Defendant is to be commended for placing claimant in a 
 
            position where he is not required to do much overhead 
 
            lifting.  Claimant's current position involves lighter 
 
            duties.  He has been able to perform his tasks without 
 
            complaints to his supervisor.
 
            
 
                 Therefore, claimant is entitled to 25 weeks of 
 
            permanent partial disability benefits.  Claimant is also 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            entitled to 23.143 weeks of healing period benefits for the 
 
            period from August 11, 1988 to January 19, 1989.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay twenty-five (25) weeks of 
 
            permanent partial disability benefits to claimant at the 
 
            stipulated rate of one hundred seventy-eight and 15/l00 
 
            dollars ($178.15) per week commencing on March 15, 1989.
 
            
 
                 Defendants are to also pay twenty-three point 
 
            one-four-three (23.143) weeks of healing period benefits to 
 
            claimant at the stipulated rate of one hundred seventy-eight 
 
            and 15/l00 dollars ($178.15) per week.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall take credit for all benefits 
 
            previously paid to claimant.
 
            
 
                 Costs of this action are assessed to defendants.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            1913 Ingersoll Ave
 
            Des Moines  IA  50309-3320
 
            
 
            Mr. James C. Huber
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed July 25, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID SAMPLE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 888801
 
            UNITED PARCEL SERVICE,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant sustained a five percent permanent partial 
 
            disability to the body as a whole as the result of a work 
 
            injury to his shoulder.
 
            Claimant had sustained a minimal loss of earning capacity 
 
            but had returned to his employment at the same rate of pay.