BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROSE SANDERS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 888811
 
            ST. LUKE'S LUTHERAN HOME,     :
 
                                          :          R E V I E W -
 
                 Employer,                :
 
                                          :        R E O P E N I N G
 
            and                           :
 
                                          :         D E C I S I O N
 
            CONTINENTAL INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a petition for Review-Reopening which was filed 
 
            on October 12, 1992.  An Arbitration Decision was filed on 
 
            October 21, 1991.  In the arbitration decision, Deputy 
 
            Industrial Commissioner Walter McManus held that claimant 
 
            had an industrial disability in the amount of 20 percent. 
 
            
 
                 Prior to the date of the hearing, claimant amended her 
 
            petition for review-reopening to conform to an application 
 
            for alternate medical care.
 
            
 
                 The parties stipulated that the hearing could be held 
 
            by telephone conference call.  The record of the hearing 
 
            consisted of the testimony of claimant.  The record was also 
 
            comprised of exhibits 1 and 2.  The proceeding was reported 
 
            by a certified shorthand reporter.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for disposition is whether claimant is 
 
            entitled to alternate medical care pursuant to section 85.27 
 
            of the Iowa Code.
 
            
 
          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                       FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
            
 
                 The deputy, having heard the evidence, reviewed the 
 
            file, and after having considered all of the evidence, the 
 
            deputy makes the following findings of fact and conclusions 
 
            of law:
 
            
 
                 Claimant is 36-years-old.  Since May of 1990, claimant 
 
            has not worked outside of the home.  She has applied for a 
 
            few positions, however.  She does perform some routine 
 
            household chores.  Claimant has not been self-motivated to 
 
            improve her condition.
 
            
 
                 In 1992, defendants authorized medical treatment for 
 
            claimant's back condition with Daniel J. McGuire, M.D.  On 
 
            May 13, 1992, claimant was examined by Dr. McGuire.  The 
 
            orthopedic surgeon composed office notes for the date of the 
 
            examination.  In his notes, the physician wrote:
 
            
 
                    PHYSICAL EXAMINATION:  She is a very heavyset 
 
                 [sic] white female.  Standing, the right leg is 
 
                 slightly longer than the left.  I see no evidence 
 
                 of scoliosis.  Examination of her spine is benign.  
 
                 I see no swelling, no warmth, no spasms and no 
 
                 deformity.  She forward flexes 90 degrees and 
 
                 extends 20 degrees.  She is neurologically intact.
 
            
 
                    X-RAYS:  X-rays are negative.
 
            
 
                    She went on and on and on and I just finally 
 
                 gave up.  I could not argue with her today.  She 
 
                 started asking me all these inappropriate 
 
                 questions and I gave up.
 
            
 
                    She wants medicine, she wants this, she wants 
 
                 that and I do not have the energy for it today.
 
            
 
                    I finally just had to leave the room.  I did 
 
                 not want to argue with her, I told her I did not 
 
                 have access to her old records, so I am somewhat 
 
                 handicapped.  I did tell her we could get a MRI.  
 
                 If the MRI comes back normal or negative, she 
 
                 would then have to live with those results and it 
 
                 would be the end of her claim.  That set off 
 
                 another tirade and I could not handle it.
 
            
 
                     ...
 
            
 
                    She does not need a referral to the Mayo 
 
                 Clinic.  There is nothing to do for her.  Based on 
 
                 her history, her physical examination and the 
 
                 report from the CT scan, there is nothing to do 
 
                 for her in the way of surgical intervention.  I 
 
                 realize that she has perhaps heard some little 
 
                 catch phrases that might insinuate there is 
 
                 something to help her from surgery.  It is real 
 
                 interesting that never once did she bring up all 
 
                 the doctors that told her surgery was not an 
 
                 option.  All she can remember somebody once told 
 
                 her there was a little something wrong with one 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 disk.  The fact of the matter is, it does not 
 
                 sound like there is anything wrong with the disk.  
 
                 The claim should be over with, she should go back 
 
                 to work.  She is overweight, she is out of shape 
 
                 and it would be very difficult for her to be a 
 
                 productive member of society at her current level.  
 
                 That is not in any way related to the lifting 
 
                 incident three years ago, but it is just related 
 
                 to how she has allowed herself to have her 
 
                 physical endurance deteriorate....
 
            
 
            (Exhibit 1)
 
            
 
                 In June of 1993, claimant was authorized to see William 
 
            R. Boulden, M.D., another orthopedic surgeon.  Dr. Boulden 
 
            examined claimant on June 7, 1993.  He also reviewed 
 
            claimant's medical records.  In his office note for June 
 
            7th, the orthopedic surgeon opined:
 
            
 
                    On physical examination, she weighs 260 pounds 
 
                 and she is five foot six and a half inches tall.  
 
                 She states that she has lost a inch and a half 
 
                 since that injury.  On gross inspection, she is 
 
                 very obese both in her lower extremities and her 
 
                 body.  She has diffuse tenderness but no specific 
 
                 point tenderness of the lower back.  She usually 
 
                 flexes to 105 degrees and extends to 35 degrees.  
 
                 Left and right lateral bending is to 35 degrees, 
 
                 meaning normal range of motion.  Circulation is 
 
                 normal in the lower extremities.  Reflexes are 
 
                 equal and symmetrical of the knees and ankles.  
 
                 Straight leg raising is negative bilaterally.  
 
                 Lasegue's maneuver causes only popliteal 
 
                 tightness.  No radicular pain.  Motor function of 
 
                 the lower extremities showed normal function of 
 
                 5/5.  No sensory deficit was noted.  Patrick's 
 
                 test was negative.
 
            
 
                    We reviewed her lumbar spine films of June 8, 
 
                 1988 and her CAT scan of July 18, 1988.  I believe 
 
                 that these show that the patient has degenerative 
 
                 disc disease.  The CAT scan showed the 
 
                 degenerative bulging disc slightly to the left of 
 
                 mid line.  It wasn't causing any neural entrapment 
 
                 or impingement.
 
            
 
                    Impression:  At this point in time, I feel the 
 
                 patient sustained a myofascial injury that 
 
                 subsequently has come to the fact that she has had 
 
                 no true back rehabilitation and because of the 
 
                 pain that she has had she has developed a chronic 
 
                 pain problem and has been poorly educated and has 
 
                 a poor understanding of her real problem.  She 
 
                 freely admits that her weight is a major factor in 
 
                 her back at this point.  I discussed with her 
 
                 therefore that I didn't feel a CAT scan or MRI 
 
                 would change my diagnosis at all.  It wouldn't 
 
                 effect [sic] the treatment protocol that I have 
 
                 recommended for her.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                    In other words, she doesn't need any type of 
 
                 surgical intervention because it couldn't take 
 
                 care of the back problem that she has and make her 
 
                 back new.  The degenerative changes that she has 
 
                 in her back are pre-existing to the injury but 
 
                 have been aggravated and because of the lack of 
 
                 back rehabilitation and weight gain she continues 
 
                 to get worse and worse.
 
            
 
                    Therefore, I sat down with her in a half an 
 
                 hour detailed discussion after the examination 
 
                 which lasted a hour and 15 minutes showing her 
 
                 what was wrong with her back and how to get 
 
                 herself better.  I have told her that basically 
 
                 she needs weight reduction, a true back 
 
                 rehabilitation program which would entail back 
 
                 stabilization exercises, a work conditioning 
 
                 program and pain management.  I told her that she 
 
                 has to learn that pain doesn't necessarily mean 
 
                 harm and she will have pain until she gets her 
 
                 back in good working order.
 
            
 
                     ...
 
            
 
                    Therefore, I feel that the ratings that have 
 
                 been given to her in the past of 5% disability 
 
                 rating from a physical standpoint have been 
 
                 appropriate and what her final industrial rating 
 
                 really doesn't concern me at this point in time 
 
                 since I am not involved in those type of 
 
                 decisions.  Therefore, I feel the patient can 
 
                 definitely [sic] employed again.  What her final 
 
                 limitations will be, will depend a lot on what she 
 
                 does with the protocol we have outlined for her.  
 
                 She could do nothing and be totally disabled based 
 
                 on symptoms or she could work hard, lose the 
 
                 weight, and rehabilitate her back and she could 
 
                 still be a good functioning person from a back 
 
                 standpoint.  This item is strictly up to the 
 
                 individual and there is no doctor that is going to 
 
                 help her other than the fact of guiding her 
 
                 through this [sic] protocols.
 
            
 
                    Therefore, if I can be of any further help, 
 
                 please feel free to contact me.
 
            
 
            (Ex. 1, pages 4 & 5)
 
            
 
                 Section 85.27 of the Iowa Code provides in relevant 
 
            part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                    For purposes of this section, the employer is 
 
                 obligated to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care...
 
            
 
                 Since the onset of her work injury, claimant has seen a 
 
            plethora of medical providers.  She was examined by a Dr. 
 
            Cresswell.  He, in turn, referred claimant to Brian W. 
 
            Nelson, M.D.  Dr. Nelson ordered rehabilitation.  Claimant 
 
            maintained the back rehabilitation caused her pain.  
 
            Claimant was also examined by A. J. Wolbrink.  The physician 
 
            ordered a functional capacity evaluation.  He also 
 
            recommended a rehabilitation program.  Claimant was also 
 
            evaluated by J. Michael Donohue, M.D., who diagnosed 
 
            claimant as having a myofascial strain.
 
            
 
                 Then after the arbitration decision was filed, claimant 
 
            was evaluated by Dr. McGuire and by Dr. Boulden.  It is 
 
            apparent to this deputy that the patient/doctor relationship 
 
            between Dr. McGuire and claimant has deteriorated to the 
 
            point that the relationship can no longer continue.  Dr. 
 
            McGuire acknowledges his inability to communicate with 
 
            claimant.
 
            
 
                 However, the relationship between claimant and Dr. 
 
            Boulden is quite different.  Dr. Boulden has offered 
 
            reasonable treatment in the form of a spine rehabilitation 
 
            program, coupled with a work hardening program.  Such a 
 
            program appears reasonable in light of claimant's very poor 
 
            conditioning and her inability to self-motivate.
 
            
 
                 It is this deputy's determination that defendants shall 
 
            return claimant to Dr. Boulden for a current back 
 
            evaluation, and if Dr. Boulden now recommends a spine 
 
            rehabilitation program, and/or a work hardening program, 
 
            then defendants will provide such recommended programs.  
 
            Defendants are not required to pay for a CT scan or an MRI 
 
            unless Dr. Boulden now deems such tests as necessary.
 
            
 
                                     
 
            
 

 
            
 
            Page   6
 
            
 
                                       ORDER 
 
           
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall provide reasonable and necessary 
 
            medical treatment through Dr. Boulden, including a current 
 
            evaluation regarding claimant's back condition, and if Dr. 
 
            Boulden recommends a spine rehabilitation program, and/or a 
 
            work hardening program, then defendants shall provide the 
 
            same.
 
            
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David S. Wiggins
 
            Attorney at Law
 
            1200 35th Street
 
            700 West Towers
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Fred L. Morris
 
            Attorney at Law
 
            Suite 700
 
            405 6th Avenue
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROSE MARIE SANDERS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  888811
 
            ST. LUKE'S LUTHERAN HOME,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Rose 
 
            Marie Sanders, claimant, against St. Luke's Lutheran Home, 
 
            employer, and Continental Insurance Company, insurance 
 
            carrier, defendants, for benefits as a result of an alleged 
 
            injury which occurred on June 8, 1988.  A hearing was held 
 
            in Storm Lake, Iowa, on May 16, 1990, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Willis J. Hamilton.  Defendants were 
 
            represented by Fred L. Morris.  The record consists of the 
 
            testimony of Rose Marie Sanders, claimant; Peggy S. 
 
            McGuigan, defendants' witness; Teresa K. Lansman, nursing 
 
            director; Thomas A. Roach, who lives with claimant; and 
 
            joint exhibits 1 through 15 and portions of exhibit 16 which 
 
            begin on pages 17, 19, 97 and 107.  The deputy ordered a 
 
            transcript of the hearing.  Claimant's attorney submitted an 
 
            excellent posthearing brief.  Defendants' attorney did not 
 
            submit a posthearing brief.
 
            
 
                                preliminary matter
 
            
 
                 Certain issues shown on the hearing assignment order 
 
            (1) odd-lot; (2) 85.27; and (3) 85.38(2) were withdrawn by 
 
            the parties at the time of the hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on June 8, 1988, 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability; and,
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and if so, the extent of benefits to 
 
            which she is entitled.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury on 
 
            June 8, 1988, to her lumbar spine which arose out of and in 
 
            the course of her employment with employer.
 
            
 
                 Claimant started to work for employer on October 26, 
 
            1987 (transcript page 184) and worked there until her injury 
 
            on June 8, 1988.
 
            
 
                 Claimant testified that she and another employee were 
 
            lifting a resident off of the toilet, the other employee 
 
            slipped with the resident and claimant grabbed the resident 
 
            so she wouldn't fall and felt a sharp pain going through her 
 
            lower back on the left side (tr. p. 33).  This is verified 
 
            by the first report of injury which both parties introduced 
 
            as joint exhibit 12.  Claimant reported the incident 
 
            immediately (tr. p. 34).  This was verified by Teresa K. 
 
            Lansman, director of nursing (tr. p. 178).  Claimant went to 
 
            see Ronald J. Creswell, M.D., the same day (tr. p. 35).  On 
 
            June 8, 1988, Dr. Creswell noted, "This is a Workman's [sic] 
 
            Comp. for St. Lukes Nursing Home.  This is a 30 year old 
 
            female who injured her back today while lifting a patient.  
 
            Patient apparently slipped and when she grabbed to prevent 
 
            the patient from falling she injured her lower back." 
 
            (exhibit 1, p. 2).  Dr. Creswell found limitation of motion, 
 
            positive straight leg raising bilaterally, but no radiation 
 
            or numbness in the legs.  Lumbar x-rays showed a narrowing 
 
            of the L5-S1 disc space and mild narrowing of L4-L5.  He 
 
            diagnosed lumbar strain, possible lumbar disc syndrome (ex. 
 
            1, p. 2).
 
            
 
                 This evidence was not controverted, rebutted, 
 
            contradicted,           or refuted.  
 
            
 
                 Even though injury was designated as a formal issue to 
 
            be decided in this case, defendants did not seriously 
 
            dispute this issue or the issue of claimant's entitlement to 
 
            temporary disability, but directed the court's attention to 
 
            the physical and functional disability and the industrial 
 
            disability factors such as motivation (tr. pp. 14 & 15).
 
            
 
                 Defendants attacked claimant's credibility.  Thomas A. 
 
            Roach, who lives with claimant, described claimant as an 
 
            outspoken individual whom other people sometimes found 
 
            offensive (tr. p. 200).  Peggy S. McGuigan, the sister of 
 
            Roach, testified that claimant is not to be trusted (tr. p. 
 
            151) citing several family experiences.  Lansman testified 
 
            that claimant's conversation and behavior was sometimes 
 
            inappropriate (tr. p. 190) and that claimant did have to be 
 
            handled very delicately because she did have a tendency to 
 
            cause problems with other employees (tr. p. 177).  
 
            Nevertheless, none of this evidence controverts the 
 
            established fact that claimant did sustain an injury to her 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            lower back while lifting a resident on June 8, 1988.
 
            
 
                 There was evidence that claimant suffered a serious 
 
            head injury in 1976 and was in a coma for approximately one 
 
            month for which she was treated at the Mayo Clinic and 
 
            subsequently at the Cherokee Mental Health Institute (exs. 3 
 
            & 4).  Claimant also had some other general health problems 
 
            of hypothyroidism and a female disorder which casued a 
 
            hysterectomy (exs. 2 & 9).  It was also reported that she 
 
            fell down some stairs at home approximately two weeks prior 
 
            to this injury (tr. p. 178).  Claimant was also in another 
 
            automobile accident on December 3, 1987 (ex. 1, p. 2).  
 
            However, it is not established that any of these incidents 
 
            had any effect on this injury of June 8, 1988.
 
            
 
                 On the contrary, Dr. Creswell performed a preemployment 
 
            physical examination on October 23, 1987, and stated that 
 
            claimant was okay for nursing home work (ex. 1, p. 1).  
 
            Another report by a physician's assistant by the name of J. 
 
            Heckman, P.A-C., dated October 23, 1987, stated that 
 
            claimant had a normal examination and had no limitations 
 
            (ex. 15).  
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury to her lumbar spine on June 8, 1988, which arose out 
 
            of and in the course of employment with employer.
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 It is determined that the injury was the cause of 
 
            temporary total disability and that claimant is entitled to 
 
            22 weeks of healing period benefits for the period from June 
 
            8, 1988 through November 9, 1988.
 
            
 
                 Claimant testified that Dr. Creswell took her off work 
 
            on June 8, 1988 (tr. p. 35).  His notes for that date show, 
 
            "absolute bed rest." (ex. 1, p. 2).
 
            
 
                 In a letter to claimant dated November 8, 1988, Dr. 
 
            Creswell determined that claimant had attained maximum 
 
            medical improvement.  He said, "I feel that we have tried 
 
            several avenues to rehabilitate your chronic, lumbar strain.  
 
            We have tried several specialists and different treatment 
 
            plans and the intermittent pain that you get from your back 
 
            continues.  I feel that five months is an adequate trial." 
 
            (ex. 1, p. 12).
 
            
 
                                        
 
            
 
                                        
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury was the cause of 
 
            permanent disability, that claimant has sustained a 20 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 100 weeks of permanent partial 
 
            disability benefits.  
 
            
 
                 Dr. Creswell found claimant to be very demanding.  She 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            demanded a CT scan, a myelogram, referral to a specialist, 
 
            referral to another specialist for a second opinion, and a 
 
            referral to the Mayo Clinic.  She demanded to know exactly 
 
            what was wrong with her and when she was going to be well 
 
            (ex. 1).  Dr. Creswell did order a CT scan of the lumbar 
 
            spine from L1 to S1.  The radiologist reported on July 18, 
 
            1988:
 
            
 
                    None of the discs are ruptured.  None of the 
 
                 discs are prolapsing.  All discs have normal 
 
                 contours.  Vertebral bodies have normal margins.  
 
                 There is no evidence of spondylosis.  There is no 
 
                 evidence of osteophyte formation.  All 
 
                 intervertebral foramina and nerves passing through 
 
                 them are well displayed.  Sacroiliac articulations 
 
                 are radiographically intact.
 
            
 
            (exhibit 1, page 11)
 
            
 
                 Dr. Creswell and another member of his office, Steven 
 
            L. Wolfe, M.D.; believed that claimant did not have any disc 
 
            involvement.  Dr. Creswell's course of treatment was 
 
            medications, exercise, weight loss and physical therapy.  
 
            Dr. Creswell did not give any permanent impairment rating.  
 
            He did indicate that claimant was foreclosed from her 
 
            previous principal employment of being a nurse's aide (ex. 
 
            10, interrogatory 5) and imposed certain strict restrictions 
 
            on future employment.  Dr. Creswell wrote to claimant on 
 
            November 8, 1988, "I don't think you should be doing any 
 
            heavy lifting such as nurse-aid work.  I feel you should 
 
            persue [sic] a different line of work which has no lifting 
 
            heavier than 10 to 20 pounds.  You should not have a job 
 
            that has frequent bending and stooping." (ex. 1, p. 12).
 
 
 
                 Dr. Creswell referred claimant to Brian W. Nelson, 
 
            M.D., an orthopedic specialist.  He saw claimant on June 27, 
 
            1988, and diagnosed lumbar strain.  Dr. Nelson recommended 
 
            (1) isokinetic testing to see if claimant would profit from 
 
            a Cybex rehabilitation program; (2) a review of back school 
 
            materials to learn proper back care; (3) that he follow her 
 
            closely for two weeks with the object of returning claimant 
 
            to work; and (4) he indicated no permanent impairment was 
 
            expected and the prognosis for recovery was very good (ex. 
 
            5, pp. 1 & 2).  
 
            
 
                 On July 11, 1988, claimant demanded that Dr. Nelson 
 
            order a CT scan, a myelogram and that she wanted a second 
 
            opinion from another doctor.  Dr. Nelson indicated that he 
 
            did not think these tests were warranted because his 
 
            diagnosis was lumbar strain with the primary injuries being 
 
            to the muscles and ligaments and fascia of the lumbar spine 
 
            (ex. 5, p. 3).  Claimant never saw Dr. Nelson again.  She 
 
            contended that the Cybex machine caused a knife-like pain in 
 
            her back (tr. p. 39) and that the second opinion doctor, 
 
            A.J. Wolbrink, M.D., advised her not to continue with the 
 
            Cybex rehabilitation program.  Nothing in Dr. Wolbrink's 
 
            notes support this statement allegedly made by him. 
 
            
 
                 Since claimant did not see Dr. Nelson again, there is 
 
            no permanent impairment rating or restrictions from him, but 
 
            he did indicate that her injury was only lumbar strain not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            yet responding to conservative repair and that no permanent 
 
            impairment was expected and the prognosis for recovery was 
 
            very good (ex. 5, p. 3).
 
            
 
                 Dr. Creswell referred claimant to Dr. Wolbrink on July 
 
            25, 1988, who diagnosed acute strain of the back with 
 
            persistent mechanical or muscular back pain (ex. 6, p. 1).  
 
            A prescription slip signed on August 22, 1988, by Dr. 
 
            Wolbrink and addressed to Rose Ann Sanders, states, 
 
            "Sprained back with partial rupture of disc with some nerve 
 
            root irritation or pinching."  (ex. 6, p. 6).  His notes 
 
            indicate he suspected some nerve root irritation, but a 
 
            myelogram was not necessary and he did not think that 
 
            surgery was advisable.  He recommended a conservative 
 
            treatment program for her closer to her home supervised by a 
 
            physician closer to home (ex. 6, pp. 2 & 3).
 
            
 
                 On December 22, 1988, Dr. Wolbrink performed another 
 
            physical examination and reported as follows:
 
            
 
                 Based on these findings and previous evaluation, 
 
                 it would [be] my opinion that at the present time 
 
                 she has an impairment of 5 percent of the whole 
 
                 person due to the restrictions in her back motion.  
 
                 At present, she could not tolerate work as a 
 
                 nurse's aid and probably will not be able to 
 
                 tolerate this into the foreseeable future.
 
            
 
            (exhibit 6, page 4)
 
            
 
                 The functional capacity examination performed by Dr. 
 
            Wolbrink on December 22, 1988, indicated that claimant could 
 
            lift/carry up to 10 pounds frequently, 11 to 20 pounds 
 
            occasionally, and should never lift more than that.  He 
 
            classified this as sedentary work.  He indicated patient's 
 
            work tolerance should improve (ex. 6, p. 5).  On December 
 
            23, 1988, Dr. Wolbrink explained to the insurance company 
 
            representative that the impairment rating of 5 percent of 
 
            the whole person was not permanent.  Dr. Wolbrink explained, 
 
            "Since this could still change over the next 6 to 18 months, 
 
            I do not necessarily consider it a permanent impairment.  
 
            However, I would agree with your approach that attempts at 
 
            vocational rehabilitation are appropriate at this time." 
 
            (ex. 6, p. 7).
 
            
 
                 Dr. Creswell reported, back on September 1, 1988, to 
 
            claimant that Dr. Wolbrink felt there might possibly be some 
 
            nerve root irritation, but that he did not recommend 
 
            surgery.  At that time, Dr. Creswell recommended weight 
 
            loss, exercises and a walking program.  He refused to 
 
            authorize the Mayo Clinic at the expense of the workers' 
 
            compensation carrier (ex. 1, p. 6).  
 
            
 
                 Claimant was evaluated for defendants by J. Michael 
 
            Donohue, M.D., on February 21, 1990.  He assessed a probable 
 
            lumbar strain with no radicular findings or symptoms 
 
            consistent with disc herniation (ex. 7, p. 3).  Later, Dr. 
 
            Donohue reviewed the CT scan and reported on April 4, 1990, 
 
            that he agreed with Dr. Wolbrink's previous interpretation 
 
            of a central bulge at the L5-S1 disc space.  However, Dr. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Donohue did not feel there was any significant impingement 
 
            on the thecal sac or the nerve roots.  Furthermore, he could 
 
            not attribute her subjective complaints to this finding of 
 
            the central bulge at L5-S1.  He said her discomfort is more 
 
            likely soft tissue or myofascial strain rather than disc 
 
            herniation (ex. 7, pp. 5 & 6).  
 
            
 
                 In a deposition, given on May 3, 1990, he agreed with 
 
            Dr. Wolbrink that the CT scan showed a central bulge to the 
 
            L5-S1 disc space, but he did not believe there was any 
 
            significant impingement on the thecal sac or the spinal cord 
 
            or on the nerve roots.  He concluded, "...My conclusion of 
 
            the CT scan was that the patient does have a variation on 
 
            the CT scan, but I was unable to attribute her subjective 
 
            complaints to this variation." (ex. 14, p. 12).  He repeated 
 
            his assessment was probable lumbar strain without radicular 
 
            findings or symptoms consistent with disc herniation (ex. 
 
            14, p. 14).  It was his opinion that other than 
 
            rehabilitation activities, no further therapeutic or 
 
            diagnostic intervention would likely impact on her problem 
 
            (ex. 14, pp. 14 & 15).  He added that her range of motion 
 
            fell within the normal ranges of motion in the Guides to the 
 
            Evaluation of Permanent Impairment, third edition, published 
 
            by the American Medical Association (ex. 14, pp. 15 & 16).  
 
            Dr. Donohue testified, "Based on findings at this point, I 
 
            do not believe the patient has sustained any permanent 
 
            impairment, utilizing the guidelines I routinely use to 
 
            determine permanent impairment." (ex. 14, p. 17).  He stated 
 
            that the bulging disc was only an incidental finding rather 
 
            than a source of discomfort for claimant.  Dr. Donohue 
 
            granted:
 
            
 
                    In general, my approach to individuals with -- 
 
                 with lower back injuries and residual subjective 
 
                 symptoms, my usual recommendations are to avoid 
 
                 activities that require repetitive bending and 
 
                 lifting.  Based on my information up to this 
 
                 point, I would not put any further restrictions 
 
                 upon her.
 
            
 
            (exhibit 14, pages 18 & 19)
 
            
 
                 Dr. Donohue said that claimant could return to work in 
 
            the nursing home if it did not require repetitive bending 
 
            and lifting (ex. 14, p. 33).  Dr. Donohue did not think that 
 
            claimant's weight was significantly impacting on her problem 
 
            (ex. 14, p. 43).  
 
            
 
                 Dr. Donohue admitted that he is a former partner in 
 
            practice with Dr. Nelson and that they are currently 
 
            partners in Back Rehabilitation Clinics of America, Inc., 
 
            also referred to as Back Care, Inc., which performs 
 
            isokinetic rehabilitation clinics in Spirit Lake; Sioux 
 
            City; Omaha, Nebraska; and affiliated with a clinic in 
 
            Mankato, Minnesota (ex. 14, pp. 19 & 20).  
 
            
 
                 In summary then, Dr. Wolbrink thought the bulge at 
 
            L5-S1 was causing a partial ruptured disc and some nerve 
 
            root impingement, whereas, Dr. Donohue did not think the 
 
            bulge was causing any nerve root impingement nor was it 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            related to any of claimant's subjective symptoms.
 
            
 
                 Irrespective of whether the disc bulge caused a nerve 
 
            root impingement, the primary determining factor of 
 
            industrial disability in this case is that claimant is 
 
            foreclosed from performing her principle and primary 
 
            occupation of nurse's aide work.  Both Dr. Creswell, the 
 
            treating physician, and Dr. Wolbrink stated she was 
 
            foreclosed from returning to nurse's aide work in the 
 
            nursing home.  Dr. Donohue said she could return to the 
 
            nursing home if she did not perform repetitive bending and 
 
            lifting.  However, it was not possible for claimant to 
 
            return to nurse's aide work without performing an inordinate 
 
            amount of lifting and bending.  Therefore, the net effect of 
 
            Dr. Donohue's evaluation also is that claimant is foreclosed 
 
            from nurse's aide work.  Essentially he said, if it hurts, 
 
            don't do it.  Claimant returned to work for a few hours on 
 
            the night shift where the work is light on or about October 
 
            24, 1988, but contended that she was unable to perform the 
 
            work because it hurt her back (ex. 1, p. 9).
 
            
 
                 The testimony of Lansman supports claimant.  Lansman 
 
            testified that claimant was terminated because she could no 
 
            longer perform nurse's aide work.  She said that she 
 
            received a letter from Dr. Creswell stating that claimant no 
 
            longer work as a nurse's aide. (tr. p. 180).  She added that 
 
            they discourage people from working for defendant who have 
 
            back problems.  She said, "...[W]e inform them that this is 
 
            a job that requires a great deal of lifting, and if you have 
 
            a known back injury, then perhaps this isn't recommended for 
 
            you..." (tr. p. 187).  Lansman added, "...[B]ut typically we 
 
            would not hire somebody with a known back problem.  It just 
 
            wouldn't make good sense."  (tr. pp. 187 & 188).  She 
 
            acknowledged that claimant's job as a certified nursing 
 
            assistant requires "a lot of lifting" (tr. p. 188).  Lansman 
 
            said that only the administrative jobs and secretarial 
 
            positions and office positions do not require lifting (tr. 
 
            p. 188). 
 
            
 
                 
 
            
 
                 Claimant testified that the nurse's aide is the one who 
 
            does all of the lifting of the patients in the nursing home 
 
            (tr. p. 60).  She further testified that for this reason 
 
            they did not hire anyone with back problems because you have 
 
            to lift constantly (tr. p. 63).  Claimant testified that the 
 
            administrator of the nursing home told her that she could 
 
            never return to work because of Dr. Creswell's restriction 
 
            of not being able to lift more than 10 to 20 pounds.  
 
            Claimant further testified that she asked him if there was 
 
            any other kind of work, like secretarial, or anything else 
 
            that she could do and he said no (tr. pp. 37 & 38).
 
            
 
                 If defendants have absolutely no work which claimant 
 
            can perform it is some evidence of a fairly serious 
 
            disability.  In this particular case, employer was forced to 
 
            terminate claimant because she was unable to perform the 
 
            physical requirements of the job of certified nurse's aide.  
 
            The refusal or inability of an employer to employ an injured 
 
            employee is strong evidence of lack of employability.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Professor Larson makes a point which applies to this 
 
            particular case, "At the outset, one might suppose that the 
 
            refusal of defendant employer himself to employ the claimant 
 
            would be the strongest kind of evidence against that 
 
            employer."  Then Larson asserts what as a practical matter 
 
            ought to be obvious, "It is hardly necessary to labor the 
 
            inconsistency of permitting an employer to fire a man for 
 
            physical defects caused by his own employment conditions,    convenience store job becasue of her lifting restriction 
 
            (tr. p. 100).   
 
            
 
                 Claimant admitted that she had not gone to an 
 
            employment agency and sought help (tr. p. 100).  Nor was 
 
            there any evidence that she had been to Job Service for 
 
            assistance in finding a job.  Nor was there any evidence 
 
            that claimant had voluntarily sought out vocational 
 
            rehabilitation on her own initiative and by the same token, 
 
            defendants had not offered claimant any vocational 
 
            rehabilitation training at their expense (tr. p. 100).  
 
            Claimant admitted that she has never tried to get a 
 
            sedentary job such as receptionist, or medical clerk in a 
 
            medical facility because she does not have the schooling or 
 
            education for it (tr. pp. 127 & 128).  McGuigan testified 
 
            that claimant stated several times that she could not go out 
 
            and get a job until she won her workers' compensation case 
 
            (tr. p. 153).
 
            
 
                 There is evidence that claimant may not have a strong 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            need for employment because (1) when her husband died she 
 
            received $30,000 in life insurance benefits (tr. p. 77); (2) 
 
            she received two lake lots in Missouri and possibly other 
 
            inherited property; (3) she receives $720 a month in a 
 
            pension as a result of her husband's death until she 
 
            remarries (tr. pp. 49 & 50); and (4) she receives some 
 
            support from Roach with whom she has lived off and on since 
 
            1986.  Claimant has health insurance as a death benefit from 
 
            her deceased husband (tr. p. 69).
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit by showing a sincere attempt to find work.  
 
            Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 
 
            144 (Appeal Decision 1981); Beintema v. Sioux City 
 
            Engineering Co., II Iowa Industrial Commissioner Report 24 
 
            (1981); Cory v. Northwestern States Portland Cement Company, 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            104 (1976).
 
            
 
                 Employers are responsible for the reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Since claimant can perform housework, vacuum floors, 
 
            mop floors, dust, do the laundry, and perform yard work and 
 
            mow the lawn, albeit with some difficulty, it would appear 
 
            that there are a number of things that claimant could do in 
 
            the competitive employment market.  Claimant also picked up 
 
            scraps of dry wall and plastic paper and filled nail holes 
 
            for Tom Roach when he was wallboarding.
 
            
 
                 Wherefore, based upon (1) all of the evidence 
 
            presented; (2) all of the factors discussed above; (3) all 
 
            of the factors used to determine industrial disability, 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985), and based on agency 
 
            expertise [Iowa Administrative Procedure Act 17A.14(5)]; it 
 
            is determined that claimant has sustained a 20 percent 
 
            industrial disability to the body as a whole and that 
 
            claimant is entitled to 100 weeks of permanent partial 
 
            disability benefits at the stipulated rate of $106.82 per 
 
            week.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant sustained an injury on June 8, 1988, 
 
            which arose out of and in the course of employment with 
 
            employer.  Iowa Code section 85.3(1); McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 That the injury was the cause of both temporary and 
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 22 weeks of healing period 
 
            benefits for the period from June 8, 1988 through November 
 
            9, 1988. Iowa Code section 85.34(1).
 
            
 
                 That claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole.  Diederich v. Tri-City R. 
 
            Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).
 
            
 
                 That claimant is entitled to 100 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant twenty-two (22) weeks 
 
            of temporary total disability healing period benefits at the 
 
            rate of one hundred six and 82/100 dollars ($106.82) per 
 
            week in the total amount of two thousand three hundred fifty 
 
            and 04/100 dollars ($2,350.04) commencing on June 8, 1988.
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred six and 82/100 dollars ($106.82) per week in the 
 
            total amount of ten thousand six hundred eighty-two dollars 
 
            ($10,682) commencing on November 10, 1988.
 
            
 
                 That defendants are entitled to a credit for 
 
            seventy-three point two eight six (73.286) weeks of workers' 
 
            compensation benefits paid to claimant prior to hearing at 
 
            the rate of one hundred six and 82/100 dollars ($106.82) in 
 
            the total amount of seven thousand eight hundred 
 
            twenty-eight and 41/100 dollars ($7,828.41).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code section 86.19(1).
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Willis J. Hamilton
 
            Attorney at Law
 
            606 Ontario St.
 
            PO Box 188
 
            Storm Lake, IA  50588
 
            
 
            Mr. Fred L. Morris
 
            Attorney at Law
 
            PO Box 9130
 
            Des Moines, IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2500
 
                                               Filed April 29, 1994
 
                                               MICHELLE A. McGOVERN
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROSE SANDERS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 888811
 
            ST. LUKE'S LUTHERAN HOME,     
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            CONTINENTAL INSURANCE CO.,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            2500
 
            Defendants were ordered to send claimant for another 
 
            evaluation with Dr. Boulden, a physician who was selected by 
 
            defendants.  In 1993, Dr. Boulden had suggested a spine 
 
            rehabilitation program coupled with a work hardening 
 
            program.  Claimant is to return to Dr. Boulden for another 
 
            evaluation and to determine whether any other rehabilitation 
 
            is reasonable in light of claimant's current condition.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51100 51108.50 51401 51402.20 
 
                                          51402.30 52801 51803
 
                                          Filed October 29, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROSE MARIE SANDERS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  888811
 
            ST. LUKE'S LUTHERAN HOME,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CONTINENTAL INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100 51108.50 51401 51402.20 51402.30
 
            Claimant sustained an injury which arose out of and in the 
 
            course of employment to her lumbar spine when she lifted a 
 
            resident at work.
 
            
 
            52801
 
            The injury was the cause of temporary disability and 
 
            claimant awarded healing period benefits for period of time 
 
            the treating physician took her off work.
 
            
 
            51803
 
            The injury was the cause of permanent disability and 
 
            claimant was awarded 100 weeks of permanent partial 
 
            disability for a 20 percent industrial disability to the 
 
            body as a whole.
 
            Claimant, age 32, with a high school education, had no 
 
            permanent impairment rating and it was debatable whether her 
 
            disc bulge was causing a nerve root impairment or not, but 
 
            she was foreclosed from future work as a nurse's aide which 
 
            had been her principal occupation up to the time of the 
 
            injury.  Claimant  was bright and capable of retraining.  
 
            However, she had several other sources of income primarily 
 
            from her deceased husband and showed no true motivation to 
 
            reenter the competitive labor market.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1801; 5-1403.30; 5-2502
 
                      Filed July 23, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GAY L. ORR,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 888983
 
            JOHN MORRELL & COMPANY,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            NATIONAL UNION FIRE :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant was not credible.  She aggravated a preexisting 
 
            back condition and was awarded temporary total disability 
 
            benefits for approximately 16 weeks.
 
            
 
            5-1403.30
 
            A prior special case settlement did not bar this action 
 
            since claimant was found to have an aggravation of a prior 
 
            injury consistent with Graham v. Sheller-Globe Corp., File 
 
            No. 846903, Slip Op. at 1 (Iowa Ind. Comm'r App. April 22, 
 
            1991).
 
            
 
            5-2502
 
            Where the employer has admitted liability or is found liable 
 
            for the injury, the only condition precedent to trigger Iowa 
 
            Code section 85.35 (1991) is a showing that a prior 
 
            evaluation by the employer's physician for the injury in 
 
            issue has been made and the employer's physician has made a 
 
            conclusion regarding a permanent impairment.  Kilness v. 
 
            Ebasco Services, Inc. 34 Biennial Report of the Iowa 
 
            Industrial Commissioner 161, 162 (1979); Chapman v. Max Boyd 
 
            Co., III Iowa Industrial Commissioner Report 50, 53 (Arb. 
 
            1983).  It is not necessary for claimant to obtain the prior 
 
            approval of defendants or that claimant file an application 
 
            with the industrial commissioner's office prior to seeing an 
 
            independent examiner.  Nor is it necessary for claimant to 
 
            apply for reimbursement for an independent medical 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            examination by a physician of claimant's own choice prior to 
 
            the examination or prior to hearing.  Pirozek v. Swift 
 
            Independent Packing and Second Injury Fund of Iowa, File 
 
            Nos. 753643, 753642 and 724893, Slip op at 3 (Iowa Ind. 
 
            Comm'r App. February 18, 1987).  In this instance an 
 
            authorized doctor found the claimant's injuries to her lower 
 
            back were permanent in nature.  Cost of the examination was 
 
            assessed to defendants.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PABLO PEREZ,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 889016
 
         SIVYER STEEL CORPORATION,
 
                                         A R B I T R A T I 0 N
 
                Employer,
 
                                         D E C I S I O N
 
          and
 
          
 
          LIBERTY MUTUAL INSURANCE
 
          COMPANY,
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Pablo Perez, 
 
         claimant, against Sivyer Steel Corporation, employer (hereinafter 
 
         referred to as Sivyer), and Liberty Mutual Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on June 3, 1988.  On November 
 
         30, 1989, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from, the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. An employee-employer relationship existed between 
 
         claimant and Sivyer at the time of the alleged injury.
 
         
 
              2. Claimant is seeking temporary total disability and 
 
         healing period benefits only from August 8, 1988 through January 
 
         26, 1989 and defendants agree that he was not working at this 
 
         time.
 
         
 
              3. Claimant's rate of weekly compensation shall be $278.29.
 
         
 
         
 
         
 
         PEREZ V. SIVYER STEEL CORPORATION
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              4. With reference to the medical bills submitted by claimant 
 
         at the hearing, it was agreed that the providers would testify 
 
         that they were fair and reasonable and defendants are not 
 
         offering contrary evidence.  It was also agreed that the 
 
         requested expenses are causally connected to the foot condition 
 
         upon which the claim is based but causal connection of this 
 
         condition to a work injury remains at issue.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and in 
 
         the course of employment at Sivyer;
 
         
 
              II. Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
              III. The extent of claimant's entitlement to weekly benefits 
 
         for disability; and,
 
         
 
              IV. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Sivyer in the mold 
 
         department.    Claimant said that he also made cores in this job.  
 
         Claimant said that on June 3, 1988, while lifting a 15 to 20 
 
         pound sand core off of a rack, the core fell on his right foot.  
 
         Claimant said that he then reported to the plant nurse.   The 
 
         plant nurse indicated in her notes that the core landed on the 
 
         instep of the right foot as well as on the lateral or outer part 
 
         of the right foot.        She noted no broken skin and only 
 
         minimal swelling.  The nurse told claimant to apply analgesic 
 
         balm, ice and then heat.  Claimant said that he returned to the 
 
         nurse after the weekend as he was injured on a Friday and was 
 
         told to soak his foot in water.  There is no record of this visit 
 
         to the plant nurses' office according to company records.. 
 
         Claimant testified that he then went on a two week vacation.  
 
         Claimant said that he returned to work after his vacation and the 
 
         foot began to turn black several weeks later.  He said that he 
 
         was told by the nurse to see his own doctor.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PEREZ V. SIVYER STEEL CORPORATION 
 
         Page 3
 
         
 
         
 
         The plant nurses testified the claimant had not returned to them 
 
         after the June 3, 1988 injury until August 8, 1988 when he showed 
 
         the head nurse his toe.  Knowing him to be a diabetic, the head 
 
         nurse testified that she referred claimant to his own doctor.  
 
         The nurse testified that claimant was wearing a steel toed.safety 
 
         shoe on June 3, 1988 and that his toe would not have been 
 
         involved in the injury.  Claimant testified that the steel plate 
 
         did not cover his little toe.
 
         
 
              After his visit to the plant nurse in August of 1988, 
 
         claimant sought treatment from Joseph Azer, M.D.  Dr. Azer 
 
         diagnosed a diabetic foot with a deep traumatic ulcer of the 
 
         right toe.  Dr. Azer treated claimant until his release to return 
 
         to work on January 27, 1989.  Dr. Azer felt that the area healed 
 
         with no "traumatic residual."  Claimant was also examined by 
 
         David Nebbeling, D.O., who provided a permanent partial 
 
         impairment rating due to deformity from scarring and contractions 
 
         of the ligaments and tendons caused by inflammation and infection 
 
         from the June 1988 injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note: a credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              I. Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.          The words "in the course 
 
         of" refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).         An employer takes an employee subject 
 
         to any active or dormant health impairments, and a work connected 
 
         injury which more than slightly aggravates the condition is 
 
         considered to be a personal injury.  Ziegler v. United States 
 
         Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases 
 
         cited therein.
 
         
 
              The nurses who testified at hearing established that 
 
         claimant suffered an injury on June 3, 1988.  The fighting issue 
 
         is not whether an injury occurred but the causal connection of 
 
         this injury to claimant's toe problems in August 1988.
 
         
 
              II. The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PEREZ V. SIVYER STEEL CORPORATION 
 
         Page 4
 
         
 
         
 
         was a cause of absence from work and lost earnings during a 
 
         period of recovery from the injury.  Generally, a claim of 
 
         permanent disability invokes an initial determination of whether 
 
         the work injury was a cause of permanent physical impairment or 
 
         permanent limitation in work activity.  However, in some 
 
         instances, such as a job transfer caused by a work injury, perm . 
 
         anent disability benefits can be awarded without a showing of a 
 
         causal connection to a physical change of condition.  Blacksmith 
 
         v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award. Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.      Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 
 
         (Iowa 1974).  To establish compensability, the injury need only 
 
         be a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.     In the 
 
         case of a preexisting condition, an employee is not entitled to 
 
         recover for the results of a preexisting injury or disease but 
 
         can recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant explained that the toe was 
 
         not protected by the steel safety shoe and his testimony is 
 
         accepted as it appears plausible.  There is no question that 
 
         claimant received a blow to the outer portion of the foot.  The 
 
         delay in treatment is also plausible as he apparently did not 
 
         seek treatment until the infection had worsen to the point that 
 
         his toe turned black.  Dr. Azer diagnosed an ulcer traumatically 
 
         induced.       This opinion. supports claimant's claim of injury.  
 
         On the whole record, claimant has shown that the toe problems are 
 
         causally connected to the June 3, 1988 injury at Sivyer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PEREZ V. SIVYER STEEL CORPORATION
 
         Page 5
 
         
 
         
 
              III. However, with reference to permanent partial 
 
         impairment, only Dr. Nebbeling finds such an impairment.  The 
 
         treating physician found no such residual from the injury.  The 
 
         views of the treating physician must be given greater weight than 
 
         the one time evaluator.  Therefore, claimant has not shown by a 
 
         preponderance of evidence that he suffered from permanent 
 
         impairment as a result of the injury.  Only temporary total 
 
         disability benefits will be awarded.
 
         
 
              IV. As defendants have stipulated to the causal connection 
 
         of  claimant's toe condition to the requested medical expenses, 
 
         they will be awarded without further explanation.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         while testify indicated he was testifying truthfully.
 
         
 
              2. On June 3, 1988,, claimant suffered an injury to the 
 
         right toe which arose out of and in the course of.employment with 
 
         Sivyer.  Due to claimant's diabetes, the injury developed into a 
 
         traumatic ulcer on August 8, 1988, at which time he also 
 
         developed infection.
 
         
 
              3. The work injury of June 3, 1988, was a cause of a period 
 
         of total disability from work beginning on August 9, 1988 and 
 
         ending on January 26, 1989, at which time claimant was able to 
 
         return to work.
 
         
 
              4. Claimant failed to show that the work injury of June 3, 
 
         1988, is a cause of permanent impairment.  Claimant's wound fully 
 
         healed without residuals according to his treating physician.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to only 
 
         temporary total disability benefits and to the medical expenses 
 
         requested.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant temporary total 
 
         disability benefits from August 9, 1988 through January 26, 1989 
 
         at the rate of two hundred seventy-eight and 29/100 dollars 
 
         ($278.29) per week.
 
         
 
              2. Defendants shall pay the medical expenses.listed in the 
 
         prehearing report, exhibits 9 and 10.  Claimant shall be 
 
         reimbursed for any of these expenses paid by him.  Otherwise 
 
         defendants shall pay the provider directly along with any
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PEREZ V. SIVYER STEEL CORPORATION
 
         Page 6
 
         
 
         
 
         lawfully late payment penalties imposed on the account by the 
 
         provider.
 
         
 
              3. Defendants shall pay accrued weekly benefits in a
 
         lump sum.
 
          
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code Section 85.30.
 
         
 
              5. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of April, 1990.
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg
 
         Rock Island IL 61201
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd St
 
         Davenport IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed April 30, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PABLO PEREZ,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 889016
 
         SIVYER STEEL CORPORATION,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                              D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Claimant failed to establish entitlement to anything more 
 
         than temporary total disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         THOMAS V. HAGEMAN,	   :
 
                   		   :
 
              Claimant, 	   :
 
		                   :
 
		         vs.       :
 
                		   :      File No. 889156
 
         THOMAS V. HAGEMAN d/b/a   :
 
         HAGEMAN CONSTRUCTION AND  :
 
         LUMBER,   		   :
 
 		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
                		   :
 
         IOWA MUTUAL INSURANCE CO.,:
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.    	   :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         3, 1991 is affirmed and is adopted as the final agency action in 
 
         this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Andrew F. Van Der Maaten
 
         Attorney at Law
 
         P.O. Box 450
 
         Decorah, Iowa 52101-0450
 
         
 
         Mr. James Burns
 
         Attorney at Law
 
         P.O. Box 28
 
         Decorah, Iowa 52101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 28, 1991
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            THOMAS V. HAGEMAN,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 889156
 
            THOMAS V. HAGEMAN d/b/a   :
 
            HAGEMAN CONSTRUCTION AND  :
 
            LUMBER,   		      :
 
		                      :        A P P E A L
 
                 Employer,   	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            IOWA MUTUAL INSURANCE CO.,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 3, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS V. HAGEMAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 889156
 
            THOMAS V. HAGEMAN d/b/a       :
 
            HAGEMAN CONSTRUCTION AND      :    A R B I T R A T I O N
 
            LUMBER,                       :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Thomas 
 
            Hageman, claimant, against Hageman Construction and Lumber 
 
            Company, employer, and Iowa Mutual Insurance Company, as 
 
            defendants.  Claimant elected to be covered under his 
 
            workers' compensation policy, in accordance with Iowa Code 
 
            section 85.1A.  Claimant brings this claim as a result of an 
 
            alleged injury which arose out of and in the course of his 
 
            employment on September 24, 1987.  The matter came on for 
 
            hearing on January 18, 1991 at Dubuque, Iowa.
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant and Joe Einck; and, joint exhibits 1-14. 
 
            
 
                 In accordance with the prehearing report and the 
 
            hearing assignment order, the following issues were 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disabilities;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits, or permanent partial 
 
            or permanent total disability benefits; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            reviewed the evidence, finds the following facts:
 
            
 
                 Thomas Hageman, claimant, was 40 years old at the time 
 
            of the hearing.  He graduated from high school in 1969, and 
 
            attended Area I NIAC in Kelmer, Iowa for one and one-half 
 
            years.  He took classes in carpentry and construction and 
 
            received a degree in carpentry in 1970.
 
            
 
                 Claimant began his own construction business shortly 
 
            after receiving his carpentry degree.  Work performed 
 
            included constructing garages, barns, hog buildings; and, 
 
            pouring concrete.  The business grew; claimant began with 
 
            one truck, and by 1988, he had seven trucks, a forklift, a 
 
            backhoe and other equipment, and he had added lumber 
 
            services.
 
            
 
                 Initially, claimant's responsibilities included 
 
            visiting job sites to ascertain the type of work necessary 
 
            for a particular job; bidding the job; and, working on the 
 
            job site.  As the business grew, his responsibilities 
 
            changed, and claimant hired extra help and at one time 
 
            managed 15 employees.  The types of jobs the company worked 
 
            on changed as well, as the construction services were 
 
            performed on larger projects.
 
            
 
                 On September 24, 1987, claimant was unloading steel at 
 
            the shop and lumber yard.  He and five (5) or six (6) 
 
            workers were transferring the steel from one truck to a 
 
            different truck.  The steel consisted of eight (8) to ten 
 
            (10) sheets, which weighed between 700 to 800 pounds.  
 
            Apparently, the workers on one side of the steel unloaded 
 
            their weight of the steel faster than the other side, and 
 
            claimant's side became uncontrollable.  The weight of the 
 
            steel forced claimant to the ground.
 
            
 
                 He immediately felt "a knifing pain" in his lower back 
 
            and left leg.  
 
            
 
                 Claimant proceeded to meet his family physician, 
 
            Garfield Miller, M.D., who diagnosed "chronic left low back 
 
            and lower extremity pain, probable left S1 radiculopathy."  
 
            (Joint Exhibit 5, Page 3)  Claimant received physical 
 
            therapy at the Winneshiek County Memorial Hospital from 
 
            September 24, 1987 through June 29, 1988.  Physical therapy 
 
            consisted of moist packs followed by ultrasound with 
 
            electrical stimulation and phonoporesis over the bilateral 
 
            S1 joint.  He was instructed to perform limited activities 
 
            at home for five to seven days, and was given a home 
 
            extension program consisting of back exercises.  The 
 
            physical therapist diagnosed an "acute paralumbar strain [on 
 
            the] right [side]."  (Jt. Ex. 7, P. 1)
 
            
 
                 Claimant was released from physical therapy after his 
 
            last treatment on October 2, 1987.  The physical therapist, 
 
            James Hughes, indicated the following improvements:
 
            
 
                    The patient states he is doing quite well with 
 
                 his exercise program at home and not having a 
 
                 great deal of discomfort at this point in time.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                    In evaluating the patient's paravertebral 
 
                 muscle mass it is noted that he still has 
 
                 tenderness at the L2-L3 level on the left hand 
 
                 side.  He has localized spasm present through out 
 
                 the entire paravertebral muscle mass on the right 
 
                 extending from L2 inferiorly. . . . 
 
            
 
                    The patient will follow through with the home 
 
                 program at this point in time.  He will recheck in 
 
                 the P.T. Dept. in the future if he has further 
 
                 increase in spasm, pain or other symptoms.
 
            
 
            (Jt. Ex. 7, P. 10)
 
            
 
                 From October 2, 1987 through May of 1988, claimant did 
 
            not receive any formal medical treatment, although he did 
 
            exercises at home and took Motrin.
 
            
 
                 The evidence indicates claimant sought treatment on 
 
            June 2, 1988 from the Gundersen Clinic.  He was treated by 
 
            Anil Bouri, M.D., whose initial records the following 
 
            information:
 
            
 
                 Mr. Hageman is a carpenter and he owned a 
 
                 construction and lumber company.  He presents with 
 
                 low back pain since September 1987 and he states 
 
                 that he perhaps overlifted something at work.
 
            
 
                    ....
 
            
 
                 Impression:  Chronic left low back and lower 
 
                 extremity pain, probable left S1 radiculopathy.
 
            
 
            (Jt. Ex. 3, P. 1)
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant continued see Dr. Bouri, and on June 7, 1988 his 
 
            notes indicate the following assessment:
 
            
 
                 The EMG of the left lower extremity revealed 
 
                 electrical findings suggestive of a rather 
 
                 low-grade/chronic left S1 radiculopathy.  The CT 
 
                 scan of the lumbar spine, however, is not very 
 
                 impressive, there is no disc herniation at any of 
 
                 the three levels.  There is a minor disc bulge at 
 
                 L4-5 and L5-S1 level and there is a posterior 
 
                 osteophyte at L5-S1 level on the left side coming 
 
                 rather close to left S1 nerve root, but there is 
 
                 no displacement of the nerve root per se. . . . I 
 
                 recommended vigorous physical therapy over the 
 
                 next 3 weeks and continuation of Motrin 800 mg. 
 
                 t.i.d.  Will see him in followup in 3-4 weeks.
 
            
 
            (Jt. Ex. 3, P. 5)
 
            
 
                 Claimant was released from Dr. Bouri's care on July 6, 
 
            1988 and was to follow-up with his family physician, Dr. 
 
            Miller:
 
            
 
                 Mr. Hageman comes in for a followup [sic].  He 
 
                 reports about 50% improvement with his back pain. 
 
                 . . . We did discuss the possibility of surgical 
 
                 intervention and the fact that we would require a 
 
                 lumbar myelogram prior to this, but since he has 
 
                 been improving all along, he prefers to continue 
 
                 with conservative therapy only.  He feels that he 
 
                 has done much better and was recommended to 
 
                 continue with physical therapy and exercise 
 
                 program.
 
            
 
            (Jt. Ex. 3, P. 6)
 
            
 
                 Claimant came under the care Keith Reilly, a 
 
            chiropractor, on September 2, 1988.  He was diagnosed as 
 
            having a lumbosacral sprain-strain, and was treated with 
 
            spinal manipulations.  (Jt. Ex. 4, P. 1)  The evidence 
 
            indicates claimant treated with Dr. Reilly, from September 
 
            of 1988 through January of 1989.  (Jt. Ex. 14, PP. 3-7)
 
            
 
                 Claimant then sought treatment from the Mayo Clinic.  
 
            He was initially seen by Sherwin Goldman, M.D., on March 16, 
 
            1989:
 
            
 
                 DIAGNOSIS:
 
            
 
                 1.  Chronic left lumbosacral radiculopathy.
 
            
 
                 CONCLUSIONS/RECOMMENDATIONS:
 
            
 
                    At this time there is no surgery that would be 
 
                 helpful.  The patient has tried all forms of 
 
                 physical modalities, and this would not be useful.  
 
                 However, there has been no attempt at a steroid 
 
                 injection.  Consultation with the Pain Clinic 
 
                 would be appropriate for consideration for 
 
                 possible epidural blocks.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                    As far as work is concerned, it is unlikely 
 
                 that Mr. Hageman will be able to return to heavy 
 
                 carpentry.  More than likely, he will fit into the 
 
                 light work category as defined by the United 
 
                 States Department of Labor in the Dictionary of 
 
                 Occupational Titles.  This would include frequent 
 
                 lifting of 10 pounds and occasional lifting of 20 
 
                 pounds.
 
            
 
                    Other than these modalities mentioned above, 
 
                 the patient appears to have reached maximum 
 
                 benefit from formal medical treatment.  His 
 
                 condition is permanent and stationary, and he is 
 
                 left with a 12 percent partial impairment of the 
 
                 whole body.
 
            
 
            (Jt. Ex. 1, Pages 2-3)
 
            
 
                 Claimant has been previously treated for low back pain 
 
            with radiation into his left leg and foot.  He was treated 
 
            by I. Greene, M.D., at the Winneshiek County Memorial 
 
            Hospital on January 8, 1986.  Dr. Greene's records note the 
 
            following findings:
 
            
 
                    BACK:  There is no tenderness of his back.  
 
                 There is no acute muscle spasm.  Deep palpation 
 
                 over L5 causes some discomfort but nothing very 
 
                 serious.  Straight leg raising test is positive on 
 
                 the left side, negative on the right side.  There 
 
                 is no wasting of any muscles and normal muscle 
 
                 tone is present.  There is no evidence of any 
 
                 thrombophlebitis at this time.
 
            
 
                    DIAGNOSIS:  Probable left radiculopathy from a 
 
                 prolapsed disc at L5.
 
            
 
            (Jt. Ex. 11, P. 2)
 
            
 
                 Claimant was admitted to the hospital for four (4) days 
 
            for treatment of acute back pain.  He was treated with 
 
            Tylenol with codene, and was instructed to continue physical 
 
            therapy as an outpatient for an indefinite amount of time.  
 
            (Jt. Ex. 11, P. 3)
 
            
 
                 Claimant was evaluated by two vocational rehabilitation 
 
            experts.  One evaluation, dated March 30, 1990, indicates 
 
            that claimant has sustained a loss of earning capacity of 68 
 
            percent based on his September 24, 1987 injury to his low 
 
            back.  ((Jt. Ex. 2, P. 12)  
 
            
 
                 The second evaluation is dated December 24, 1990, 
 
            indicates that claimant, due to his limitations, is 
 
            restricted to jobs of light and sedentary physical demands.  
 
            The rehabilitation consultant indicated that claimant could 
 
            expect to obtain entry level positions with wages ranging 
 
            from $4.50 per hour to $8.94 per hour, with an average of 
 
            $6.55 per hour.
 
            
 
                 Claimant testified that while he was in business for 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            himself, he earned approximately $2000 per month, although 
 
            no tax information was provided to substantiate these 
 
            earnings.  
 
            
 
                 Claimant asserts that due to his physical limitations 
 
            following the September 24, 1987 injury, he had to sell his 
 
            construction and lumber business in April of 1988.
 
            
 
                 Since that time, claimant has sought employment and at 
 
            that time of the hearing, was employed as a salesperson, and 
 
            earns approximately $500-$700 per month.
 
            
 
                          analysis and conclusion of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 24, 
 
            1987 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe., 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The evidence shows that claimant had prior back 
 
            problems which had stabilized by August of 1986 (Jt. Ex. 5, 
 
            P. 1).  He had been performing lifting since his last 
 
            treatment, and he was not restricted in any activities he 
 
            performed.
 
            
 
                 Claimant sought treatment for low back pain soon after 
 
            the incident.  Testimony from an employee/co-worker 
 
            corroborated claimant's rendition of how the injury 
 
            occurred.  The greater weight of the evidence shows that 
 
            claimant was performing expected job duties while at a job 
 
            site; therefore, it is found that claimant sustained an 
 
            injury which arose out of and in the course of his 
 
            employment on September 24, 1987.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            24, 1987 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 The evidence provided does not show that claimant had 
 
            any prior impairment to his low back, nor that the condition 
 
            of his low back impaired or restricted his work activities.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591.  See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
            (1965); Almquist, 218 Iowa 724, 254 N.W. 35.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Two physicians rendered opinions which relate 
 
            claimant's current physical condition to the accident in 
 
            September of 1987, and both propose that the injury 
 
            aggravated a preexisting low-back condition.  (Jt. Ex. 1, P. 
 
            9; Jt. Ex. 8, P. 1)
 
            
 
                 Therefore, it is found that claimant's present 
 
            condition is an aggravation of a preexisting condition, and 
 
            that the aggravation has resulted in a permanent partial 
 
            disability.  In so finding, claimant's industrial disability 
 
            must be addressed.
 
            
 
                 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."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251.  Barton v. 
 
            Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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 dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant's medical condition prior to the injury 
 
            reveals a chronic low back problem which rendered him 
 
            incapable of working for short intervals.  His condition 
 
            immediately after the injury required several months of 
 
            physical therapy and chiropractic manipulations, but no 
 
            surgical intervention.
 
            
 
                 From October of 1987 to May of 1988, the evidence shows 
 
            that claimant did not seek medical treatment, and continued 
 
            to work.  Presently, claimant indicates he has "knifing" 
 
            pain sensations in his back and numbness in his left leg.
 
            
 
                 Claimant's work history is focused in the carpentry and 
 
            construction fields.  He started his own construction 
 
            business in 1975, which grew to employ 15 employees at its 
 
            peak.  Claimant held a myriad of duties as the owner, 
 
            including managing the employees and work on the job sites; 
 
            bidding potential projects; and, performing much of the 
 
            manual labor as well.
 
            
 
                 In May of 1988, claimant closed the business and sold 
 
            most of his equipment.  He blames the closure of the 
 
            business on his inability to physically perform the work.
 
            
 
                 Claimant's interests and abilities have been analyzed 
 
            by a vocational rehabilitation expert, Scott Streater.  He 
 
            opines that claimant has sustained a 68 percent loss of 
 
            earning capacity based on the September 1987 injury.  (Jt. 
 
            Ex. 2, P. 12)
 
            
 
                 Claimant was a successful businessperson with proven 
 
            management skills, as his business prospered.  Claimant has 
 
            proven mathematic skills used to bid jobs and order 
 
            suppliers necessary to complete the projects.  He has 
 
            transferable skills.
 
            
 
                 At the time of the hearing, claimant was 40 years old, 
 
            which places him in his peak earning years category.
 
            
 
                 Intellectually, emotionally and physically, claimant 
 
            appeared to be average.  He has an advanced degree (1 1/2 
 
            years of college) in carpentry.  Earnings prior to the last 
 
            injury hovered around $2000/month; earnings after the injury 
 
            are between $500-700/month.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's motivation to return to suitable work is 
 
            marginal.
 
            
 
                 Claimant has had prior back problems, but no evidence 
 
            was submitted to show if these prior episodes caused any 
 
            functional impairment.  Claimant has a preexisting back 
 
            condition, and has been assessed as having a 12 percent 
 
            permanent partial disability.
 
            
 
                 After consideration of all of the factors used to 
 
            evaluate an industrial disability, the undersigned finds 
 
            claimant has sustained a 25 percent industrial disability.
 
            
 
                 As claimant has sustained a permanent injury, he is 
 
            entitled to healing period benefits for a timeframe defined 
 
            by Iowa Code section 85.34(1):
 
            
 
                 If an employee has suffered a personal injury 
 
                 causing permanent partial disability for which 
 
                 compensation is payable as provided in subsection 
 
                 2 of this section, the employer shall pay to the 
 
                 employee compensation for a healing period, as 
 
                 provided in section 85.37, beginning on the date 
 
                 of injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 Claimant returned to work after his last medical 
 
            treatment on October 2, 1987.  Claimant returned to work, 
 
            and began another set of treatments on May 9, 1988, yet 
 
            there is no evidence that claimant was actually taken off of 
 
            work during this time.  The evidence does state that 
 
            claimant was unable to return to work as of September 7, 
 
            1988.  No release to return to work was produced as evidence 
 
            at the trial.
 
            
 
                 No competent evidence was submitted at the hearing to 
 
            prove claimant is entitled to healing period benefits for 
 
            any timeframe other than that to which the parties 
 
            stipulated.
 
            
 
                 Therefore, claimant is awarded healing period benefits 
 
            from September 24, 1987 to October 4, 1987.
 
            
 
                 The final issue to be addressed is claimant's 
 
            entitlement to medical benefits pursuant to Iowa Code 
 
            section 85.27.
 
            
 
                 The Code states, in pertinent part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter . . . shall furnish reasonable 
 
                 surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 The employer shall pay the costs of all medical care 
 
            provided to claimant to treat his back condition due to the 
 
            September 24, 1987 injury.
 
            
 
                 The statute does not contemplate payment of the spa 
 
            claimant obtained, and even though the evidence indicates a 
 
            suggestion that claimant be provided a spa by Drew Pellett, 
 
            M.D., this document was not prepared by a physician who had 
 
            provided extensive treatment to the claimant, and, it was 
 
            prescribed more than two years after claimant's injury, and 
 
            end of claimant's healing period.  Therefore, claimant 
 
            retains the burden of paying for the spa.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from September 24, 1987 to October 4, 1987 at the 
 
            stipulated rate of two hundred nine and 18/100 dollars 
 
            ($209.18).
 
            
 
                 That defendants shall pay permanent partial disability 
 
            payments totaling one hundred twenty-five (125) weeks at the 
 
            stipulated rate of two hundred nine and 18/100 dollars 
 
            ($209.18) beginning October 4, 1987.
 
            
 
                 That defendants shall pay medical costs incurred by 
 
            claimant for treatment of the injury of September 24, 1987.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Mr Andrew F Vandermaaten
 
            Attorney at Law
 
            212 Winnebago
 
            PO Box 450
 
            Decorah Iowa 52101
 
            
 
            Mr James Burns
 
            Attorney at Law
 
            301 W Broadway
 
            PO Box 28
 
            Decorah Iowa 52101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1801
 
                      Filed May 3, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            THOMAS V. HAGEMAN,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File No  889156
 
                      :
 
            THOMAS V. HAGEMAN d/b/a  :    A R B I T R A T I O N
 
            HAGEMAN CONSTRUCTION AND :
 
            LUMBER,   :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            IOWA MUTUAL INSURANCE CO.,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant, 40 years old, owned and operated construction 
 
            business.  Sustained a low-back strain.
 
            Permanent partial impairment of 12 percent; restricted to 20 
 
            pounds lifting on a regular basis.  Low motivation.
 
            Claimant awarded 25 percent industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         DENNIS BAKER,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 889382
 
         CLEMENT AUTO & TRUCK, INC.,   :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         FARM BUREAU INSURANCE CO.,    :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         21, 1991 is affirmed and is adopted as the final agency action in 
 
         this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Monty L. Fisher
 
         Attorney at Law
 
         Suite 200- Snell Bldg.
 
         P.O. Box 1560
 
         Fort Dodge, Iowa 50501
 
         
 
         Ms. Angela A. Swanson
 
         Attorney at Law
 
         5400 University Avenue
 
         West Des Moines, Iowa 50265
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 18, 1991
 
            BYRON K. ORTON
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DENNIS BAKER, 	      :
 
                       		      :
 
                 Claimant, 	      :
 
                     		      :
 
           		 vs.          :
 
                     		      :       File No. 889382
 
            CLEMENT AUTO & TRUCK, INC.,:
 
		                      :         A P P E A L
 
                 Employer, 	      :
 
		                      :       D E C I S I O N
 
            		and 	      :
 
                      		      :
 
            FARM BUREAU INSURANCE CO.,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 21, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS BAKER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 889382
 
            CLEMENT AUTO & TRUCK, INC.,   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Baker, claimant, against Clement Auto & Truck, Inc., 
 
            employer (hereinafter referred to as Clement), and Farm 
 
            Bureau Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on April 15, 1988.  On March 18, 1991, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Clement at the time of the alleged injury.
 
            
 
                 2.  On April 15, 1988, claimant received an injury 
 
            which arose out of and in the course of his employment with 
 
            Clement.
 
            
 
                 3.  Claimant is seeking additional temporary total dis
 
            ability or healing period benefits for only treatment of the 
 
            low back condition.  The causal connection of this condition 
 
            to the work injury is disputed.  Claimant admits that he has 
 
            been paid all of the temporary total disability or healing 
 
            period benefits as a result of neck and cervical back prob
 
            lems arising from the April 15, 1988 injury.
 
            
 
                 4.  That the cervical back injury of April 15, 1988, 
 
            was not a cause of permanent partial disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  Claimant's rate of weekly compensation is $184.98.
 
            
 
                 6.  With reference to the cervical back injury, all 
 
            requested medical benefits have been paid or will be paid by 
 
            defendants.  However, claimant is seeking additional bene
 
            fits as a result of low back problems.  The causal connec
 
            tion of the low back problems again remains in dispute.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to disabil
 
            ity benefits as a result of the low back condition.
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits as a result of the low back condition.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, this deputy industrial commissioner finds as follows:
 
            
 
                 At the time of the work injury, claimant worked for 
 
            Clement as a car salesman.  Claimant earned approximately 
 
            $1500 per month in gross wages from this job at the time of 
 
            injury.  In February 1990, claimant resigned from Clement 
 
            and accepted a position with the City of Webster City, Iowa 
 
            as a maintenance operator II.  Claimant admitted in his tes
 
            timony that he left this employment for reasons unrelated to 
 
            his physical disability or to the work injury.  In his cur
 
            rent job as a Maintenance Operator II, claimant is earning 
 
            less money than he did as a car salesman.  Claimant said 
 
            that he was willing to take a lower paying job because he 
 
            wanted steadier hours.  At the present time claimant 
 
            expresses difficulty with fully performing all of his work 
 
            as a maintenance operator in that he is required on occasion 
 
            to operate heavy bulldozers and other equipment.  However, 
 
            claimant admitted that he performs all the work that is 
 
            assigned to him at the present time.  For the most part, 
 
            claimant is only asked to drive a large dump truck and a 
 
            road maintenance grader.  Claimant feels that is able to 
 
            perform such work without difficulty.
 
            
 
                 On or about April 15, 1988, claimant injured his cervi
 
            cal spine as a result of an auto accident.  There is no dis
 
            pute that claimant was in the course of his employment at 
 
            the time of this injury.  The injury occurred when a driver 
 
            rear-ended claimant's vehicle which had slowed to make a 
 
            right turn.  The car that struck claimant was traveling 
 
            approximately 65 miles per hour at the time of the colli
 
            sion.  Claimant was immediately taken to the hospital and he 
 
            reported to his physicians at that time that he was suffer
 
            ing from severe neck or cervical back pain radiating into 
 
            the shoulder.  Claimant was subsequently treated by Subash 
 
            Shhai, M.D.  Claimant was off work for four to five days 
 
            following the accident and returned to duty as a car sales
 
            man.  The physician who treated claimant from the date of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            accident until the release from his care in May of 1988, 
 
            reported only complaints of cervical and shoulder pain in 
 
            his office notes.  Claimant has had no significant cervical 
 
            back or neck problems since his release from the care of Dr. 
 
            Shhai.
 
            
 
                 In either September or December 1988, claimant began to 
 
            experience left leg, knee and low back pain.  The first 
 
            reported complaints of such pain by Dr. Shhai was in 
 
            December 1988.  At that time, Dr. Shhai reported that 
 
            claimant wondered if this was not connected to the earlier 
 
            April 1988 injury.  At that time, Dr. Shhai referred 
 
            claimant to a neurosurgeon, Thomas Carlstrom, M.D., for 
 
            these low back problems which Dr. Shhai stated had an 
 
            unknown etiology.  Dr. Carlstrom then diagnosed a herniated 
 
            disk and performed surgery in January 1989.  Claimant was 
 
            eventually returned to work without restrictions according 
 
            to the reports of Dr. Carlstrom.  However, claimant states 
 
            that Dr. Carlstrom told him to not lift more than 50 pounds.  
 
            Claimant's testimony as to his restrictions is accepted as 
 
            correct.  There is little question in the record that 
 
            claimant suffers from a 20 percent permanent partial impair
 
            ment to the body as a whole due to the low back problems and 
 
            subsequent surgery.  This finding is based upon the views of 
 
            the treating neurosurgeon, Dr. Carlstrom.
 
            
 
                 Claimant has failed to show by the greater weight of 
 
            the evidence that the injury of April 15, 1988, was a cause 
 
            of either his low back problems; the subsequent treatment by 
 
            Dr. Carlstrom; or, his permanent partial impairment.  Only 
 
            two physicians have rendered causal connection opinions in 
 
            this case.  The treating physician, Dr. Carlstrom, states 
 
            that claimant told him that he experienced neck and back 
 
            pain after the accident and that the neck pain resolved but 
 
            not the back pain.  Given this history, Dr. Carlstrom felt 
 
            that the low back herniation and subsequent treatment was 
 
            due to the April 15, 1988, car accident.  A second evalua
 
            tor, Peter Wirtz, M.D., an orthopedic surgeon, stated that 
 
            he examined claimant in February 1991.  Dr. Wirtz opines 
 
            that due to the delay between the April 15, 1988 auto acci
 
            dent and the onset of pain in either September or December 
 
            of 1988, he could not causally connect the two incidents.
 
            
 
                 Normally, the undersigned would accept the causal con
 
            nection views of the treating physician, Dr. Carlstrom, over 
 
            the one time evaluator, Dr. Wirtz, especially when Dr. 
 
            Carlstrom was the physician who performed the surgery.  
 
            However, unlike what he told Dr. Carlstrom, claimant at 
 
            hearing testified that the pain did not begin until six to 
 
            eight months after the accident.  Obviously, this is quite 
 
            different from what was reported to Dr. Carlstrom; namely 
 
            that the neck and back pain occurred at the same time.  
 
            Consequently, this trier of fact must reject the causal con
 
            nection opinions of Dr. Carlstrom as it is based on an 
 
            incorrect history.  What Dr. Carlstrom's views would be with 
 
            a history of a six to eight month delay in the onset of pain 
 
            is unknown.  On the other hand, the views of Dr. Wirtz on 
 
            this precise issue is clear and not supportive of claimant's 
 
            theory of recovery.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 It should be noted that even if it were found that the 
 
            injury was a cause of claimant's low back problems, claimant 
 
            suffered no loss of earning capacity as a result of his low 
 
            back problems.  Claimant returned to selling cars after the 
 
            accident and only left according to his own testimony to 
 
            pursue other employment for reasons unrelated to the work 
 
            injury or to his upper or lower back problems.  Claimant, by 
 
            his own choice, has entered into the employment that is giv
 
            ing him some problems.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 In the case sub judice, claimant contended that he suf
 
            fered disability as a result of the work injury due to the 
 
            permanent impairment to the body as a whole from the low 
 
            back problems.  The evidence rather clearly established that 
 
            he has suffered a permanent impairment from the back prob
 
            lems but claimant failed to show the requisite causal con
 
            nection between those problems and the work injury.
 
            
 
                 As claimant's claim for weekly disability and medical 
 
            benefits is based upon a showing of causal connection of the 
 
            low back problems to the injury, no such benefits can be 
 
            awarded.  Costs will be assessed against claimant.
 
            
 
                                      order
 
            
 
                 1.  Claimant's claim for disability and medical bene
 
            fits is denied and his petition is dismissed.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Monty L. Fisher
 
            Attorney at Law
 
            Suite 200-Snell Bldg
 
            P O Box 1560
 
            Fort Dodge  IA  50501
 
            
 
            Mrs. Angela A. Swanson
 
            Attorney at Law
 
            5400 University Ave
 
            West Des Moines  IA  50265
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108
 
                           Filed May 21, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS BAKER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 889382
 
            CLEMENT AUTO & TRUCK, INC.,   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108 - Medical Causation - nonprecedential