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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA HAID,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 900592
 
            FRATERNAL ORDER OF EAGLES     :
 
            AERIE NO. 77,                 :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Donna Haid, against her employer, Fraternal 
 
            Order of Eagles Aerie No. 77, and its insurance carrier, 
 
            Royal Insurance Company, defendants.  The case was heard on 
 
            May 1, 1990, in Sioux City, Iowa at the Woodbury County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant as well as the testimony of Lorna Waddell, Pat 
 
            Luse, D.C., Bill Clark, Daren Young, Willis E. Gray and 
 
            Adolf Trayrig, Jr.  Additionally, the record consists of 
 
            joint exhibits 1-60.
 
            
 
                                      issues
 
            
 
                 The only issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; 4) whether claimant is entitled to 
 
            medical benefits under section 85.27; and, 5) whether 
 
            claimant is entitled to penalty benefits under section 
 
            86.13.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 55 years old.  Claimant is a trained 
 
            cosmetologist as well as a trained histologist.  However, as 
 
            a cosmetologist, claimant developed problems with her hands.  
 
            They would break out with scales and cracks.  Her hands 
 
            cramped too.
 

 
            
 
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                 Claimant had experienced other health problems as well.  
 
            Medical records for claimant as of September 20, 1978, 
 
            indicate:
 
            
 
                 The patient is a 43 year old divorced right handed 
 
                 white female referred for evaluation of neck and 
 
                 left arm pain.  The patient's history actually 
 
                 goes back a number of years, according to her, in 
 
                 that she has had intermittent low grade pain in 
 
                 the neck going back as long as about 15 years ago.  
 
                 This was transient in occurrence and responded to 
 
                 treatment with the local heating pad and mild 
 
                 analgesics such as aspirin or Bufferin and did not 
 
                 significantly interfere with her work.  
 
                 Approximately ten years ago she stated she was in 
 
                 a car accident and suffered a whiplash injury 
 
                 which aggravated the pain in the neck region and, 
 
                 in fact, made it a fairly persistent problem, 
 
                 although again she was able to continue working 
 
                 from this problem.
 
            
 
                 Five years ago the patient was involved in a 
 
                 second motor vehicle accident in which she stated 
 
                 she suffered some torsion injury to the lower 
 
                 lumbar region and this resulted in a worsening of 
 
                 the neck pain which had been present, but mainly 
 
                 at first caused a marked pain in the lower back 
 
                 region with occasional aching pain radiating into 
 
                 the entire left leg.  There was no persistent 
 
                 sensory loss and no persistent motor weakness 
 
                 described by her, however, this pain in her back 
 
                 was severe from time to time and she stated that 
 
                 because of its severity she began to consume large 
 
                 amounts of alcohol and finally was drinking 1/2 
 
                 gallon Canadian Club per week in order to be able 
 
                 to "face the day."  In addition the pain in the 
 
                 lower back was exacerbated by attempts to engage 
 
                 in sexual intercourse and because of the alcohol 
 
                 problem and the inability to have relations with 
 
                 her husband she was divorced a year after the 
 
                 accident five years ago.  She remarried shortly 
 
                 thereafter and continued to have similar problems 
 
                 with the alcohol and back pain and this led to a 
 
                 divorce one year ago from the second husband.  
 
                 There is a legal entanglement in that the patient 
 
                 apparently has a suit against the driver of the 
 
                 other vehicle for 30,000 dollars and she feels 
 
                 that this is not nearly enough money at this time 
 
                 tocover [sic] all the medical expenses which she 
 
                 has incurred over the years.
 
            
 
                 She states that she received some chiropractic 
 
                 manipulation in February 1978 which initially 
 
                 consisted of ice treatments to the lower back 
 
                 followed by stretching and manipulation and this 
 
                 resulted in a marked improvement and essential 
 
                 relief of the low back pain.  She was then doing 
 
     
 
            
 
            
 
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                 quite well until February when she had the onset 
 
                 of worsening neck pain and for the past six weeks 
 
                 she described marked aching constant pain in the 
 
                 entire back of the neck as well as the left arm.  
 
                 She describes this as a dull aching sensation 
 
                 which is constant and involves the entire left arm 
 
                 as well as the shoulder.  She also describes that 
 
                 from time to time she will get sort of an 
 
                 uncomfortable pins and needle type feeling and 
 
                 again this involves the entire hand and entire 
 
                 arm.  She denies any specific weakness of any 
 
                 muscle groups.  There is no history of muscle 
 
                 wasting or fasciculations.
 
            
 
                     ...
 
            
 
                 IMPRESSION:  A long history of subjective pain in 
 
                 the neck and low back region.  There is no 
 
                 evidence at this time of any neurologic 
 
                 abnormalities.  With the history of alcohol 
 
                 dependence, one must raise the question of an 
 
                 underlying personality disorder contributing both 
 
                 to the alcoholism and to the pain problem.
 
            
 
                 RECOMMENDATIONS:  I agree that the patient should 
 
                 be worked up with xrays [sic] and sed rate, etc.  
 
                 An EMG could be done to attempt to demonstrate 
 
                 some objective findings and,pending [sic] the 
 
                 results of the EMG, xrays [sic] and possibly a 
 
                 myelogram would be indicated or be of some help in 
 
                 trying to lucidate the problem.  Also feel that 
 
                 formal psychological evaluation would be indicated 
 
                 in view of this persistent pain syndrome as well 
 
                 as the legal entanglements.
 
            
 
                 Claimant was examined back in 1978 for possible 
 
            psychological problems.  At that time, A. J. Straatmeyer, 
 
            Ph.D., diagnosed claimant as:  "However, in my mind there is 
 
            very little question but we have an extremely hysterical 
 
            personality here in the case of this woman."
 
            
 
                 Subsequent to claimant's examination on September 20, 
 
            1978, claimant was engaged in several other accidents.  She 
 
            also had a prior workers' compensation case involving her 
 
            low back.  At that time, claimant was employed by a 
 
            different employer.
 
            
 
                 Claimant commenced her employment with 
 
            defendant-employer in October of 1985.  She was interviewed 
 
            and hired by two of the five trustees.  Claimant testified 
 
            that at the time of her hire, she informed the trustees she 
 
            would not be able to lift or stack beer cases because of her 
 
            previous back condition.  Claimant stated she did not have 
 
            to stock beer until July 1, 1988, when her duties changed.
 
            
 
                 Near the end of her shift on September 3, 1988, 
 
            claimant was working in the walk-in cooler.  She stated she 
 
            climbed over the stored beer kegs in order "to get a case of 
 
            Bud."  She felt a sharp pain in her lower back.  Claimant 
 
            finished her shift, went home and engaged in home remedies 
 

 
            
 
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            for her aching back.
 
            Claimant sought medical treatment from her treating chiro
 
            practor, Allen Bronson, D.C.  He diagnosed claimant as:
 
            
 
                                      diagnosis
 
            
 
                 1.  Traumatic strain of the cervical spine 
 
                 complicated     by residual muscle spasm, 
 
                 myofascial fibrositis,         occipital 
 
                 neuralgia, and radicualgia and myalgia.
 
            
 
                 2.  Traumatic strain of the lumbar spine 
 
                 complicated by       residual muscle spasm, 
 
                 myofascial fibrositis,         instability of the 
 
                 lumbar spine and grade one          
 
                 spondylolisthesis.
 
            
 
                                      treatment
 
            
 
                 Treatment of this patient included Chiropractic 
 
                 Manipulative Therapy, Meridian Therapy, 
 
                 Transcutaneous Nerve Stimulation (pain 
 
                 suppressor), Ultra-sound Therapy, Diathermy and 
 
                 Dietary Supplementation.
 
            
 
                           impression and clinical comment
 
            
 
                 This patient apparently suffered a traumatic 
 
                 insult to the soft tissues of the cervical spine, 
 
                 left shoulder and lumbar spine region resulting in 
 
                 the loosening of the supportive soft tissue 
 
                 structures (strain and/or sprain) with irritation 
 
                 of the lower cervical nerve roots with the result 
 
                 of radicualgia; muscle spasm of the cervical 
 
                 thoracic and lumbar paravertebral musculature, 
 
                 residual myofascial fibrositis and myalgia.  
 
                 Therefore, it must be assumed that the spine is 
 
                 experiencing some degree of instability.
 
            
 
                 Furthermore, because of the preexising [sic] 
 
                 degenerative changes throughout the spine and 
 
                 preexising [sic] congenital asymmetric facets in 
 
                 the lumbar spine, this patient's spine is more 
 
                 volnerable [sic] to injury and the degree of post 
 
                 traumatic pathology is more severe.
 
            
 
                 In my opinion, the alleged traumatic incident is 
 
                 responsible for this patients spinal injury and 
 
                 for aggravation of preexiting [sic] conditions.
 
            
 
                 No physical impairment was found by the chiropractor.  
 
            Dr. Bronson released claimant to return to light work on 
 
            January 1, 1989.  She, however, had not obtained any 
 
            employment up to the day of the hearing.
 
            
 
                 Claimant was also examined by Pat Luse, D.C., on July 
 
            20, 1989.  He saw claimant for purposes of making an 
 
            impairment rating.  Dr. Luse concluded:
 
            
 
                 This patient has degenerative joint disease in the 
 

 
            
 
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                 cervical and lumbar spine that she obviously had 
 
                 prior to this accident.  However, she did have 
 
                 near normal range of motion in the neck and low 
 
                 back area and was relatively assymptomatic prior 
 
                 to this work injury.  She also could work a full 
 
                 duty job prior to this accident and now is severly 
 
                 [sic] restricted in her work ability.  I will 
 
                 agree with Dr. Bronson that it appears the 
 
                 September 3, 1988 work injury is a major 
 
                 contributing factor to the aggravation of her back 
 
                 condition.
 
            
 
                 Dr. Luse rated claimant's condition as:
 
                 
 
                 IMPAIRMENT RATING
 
            
 
                 Range of motion loss:
 
            
 
                 1.  Cervical range of motion
 
                     Flexion 30o                        Equals 3% whole 
 
            man
 
                     Extension 20o                       Equals 4% whole 
 
            man
 
                     Right lateral flexion 20o           Equals 1% whole 
 
            man
 
                     Left lateral flexion 20o           Equals 1% whole 
 
            man
 
                     Right rotation 60o                  Equals 1% whole 
 
            man
 
                     Left rotation 60o                   Equals 1% whole 
 
            man
 
            
 
                 2.  Lumbar range of motion
 
                     Extension 10o                       Equals 5% whole 
 
            man
 
                     Flexion 20o                         Equals 7% whole 
 
            man
 
                     Right lateral flexion 15o           Equals 2% whole 
 
            man
 
                     Left lateral flexion 15o            Equals 2% whole 
 
            man
 
            
 
            
 
                 NERVE ROOT IMPAIRMENT
 
            
 
            
 
                 Loss of function due to sensory deficit pain and 
 
                 discomfort Sl nerve root equals 5%.
 
            Loss of function due to pain and discomfort 
 
            greater occipital nerve equals 2%.
 
            Total equals 30% impairment to the whole person.
 
            
 
                 Also for purposes of examination and evaluation, 
 
            claimant was seen by Bernard L. Kratochvil, M.D., an 
 
            orthopedic surgeon. He diagnosed claimant as:
 
            
 
                 DIAGNOSES:
 
            
 
                 1.  Cervical spondylosis.
 
            2.  Cervical myalgia.
 

 
            
 
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            3.  Cervical neuritis.
 
            4.  Lumbar spondylosis.
 
            5.  Degenerative disc disease, lumbar area.
 
            6.  Spondylolisthesis, L4, 5.
 
            7.  Lumbar strain/sprain.
 
            8.  Thoracic strain/sprain.
 
            
 
                 REMARKS:
 
            
 
                 This woman has neck and back discomfort as a 
 
                 result of the work related injury which occurred 
 
                 on 3 September 1988.  She has had previous medical 
 
                 problems.  In addition, the degenerative changes 
 
                 noted in the neck and lower back are not the 
 
                 result of this incident on 3 September 1988.  It 
 
                 is my opinion, however, based on reasonable 
 
                 medical certainty, that there has been some 
 
                 aggravation of her neck and back condition as a 
 
                 result of the injury incurred.  I do not feel that 
 
                 anything more than conservative, symptomatic care 
 
                 is indicated at this time.  I would expect her to 
 
                 return to gainful employment, however, some 
 
                 restrictions would apply, and in order to 
 
                 determine her exact working ability, a functional 
 
                 capacity assessment should be made.  This could be 
 
                 done by trained personnel in a physical therapy or 
 
                 a rehabilitation facility.  Midwest Rehabilitation 
 
                 Services in Omaha do provide that service.
 
            
 
                 Because of the condition of her neck and back, she 
 
                 has about a 30% impairment of the whole body.  
 
                 However, I would not attribute more than 5% of the 
 
                 total impairment to the accident of 3 September 
 
                 1988.  I see no need for anything more than 
 
                 conservative, symptomatic care and at this time 
 
                 see no indication for surgery.  If there are 
 
                 further questions about her, however, please let 
 
                 me know.
 
            
 
                 Claimant was additionally examined and evaluated by 
 
            Kevin Liudahl, M.D.  He opined:
 
            
 
                 EXAM OF BACK:  Reveals she has severe stiffness of 
 
                 her lower lumbar spine with a moderate amount of 
 
                 spasm and dysrhythmia.  She has a questionably 
 
                 positive SLR on the left.  Negative on the right.  
 
                 Negative cross/reverse.  She is neurologically 
 
                 intact in both lower extremities to gross testing.  
 
                 She has no hip irritability.  No knee 
 
                 irritability.  Waddell signs are3/5. [sic] 
 
            X RAYS:  Review of these shows a Grade I almost 
 
            Grade II L4 on 5 spondylolisthesis.  CT scan shows 
 
            what appears to be degenerative spondylolisthesis 
 
            with moderate severe stenosis at this level.  Also 
 
            has severe L5-S1 DDD and degenerative arthritis.  
 
            Has moderate 4-5 degenerative arthritis of the 
 
            posterior facets.  It is not terribly remarkable.  
 
            On neither films does she have any evidence of a 
 
            spondyloarthropathy  seen with psoriatic 
 
            arthritis.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            IMPRESSION:  Long history of intermittent 
 
            incapacitating back pain, now unrelenting constant 
 
            disabling pain over the last year.  Probably 
 
            secondary to degenerative spondylolisthesis with 
 
            spinal stenosis and L5-Sl severe DDD and 
 
            degenerative arthritis.  Does have mild to mod
 
            erate L4-5 degenerative arthritis.  No evidence of 
 
            spondyloarthropathy but does have severe near 
 
            disabling psoriatic arthritis.
 
            PLAN:  The patient has had all of the usual 
 
            conservative measures.  I think she is going to be 
 
            a candidate for surgical management.  I will send 
 
            her to Dr. Ragnarssen for evaluation for 
 
            decompression.  I think at the same time for with 
 
            any anticipated decompression she would need a 
 
            fusion.  At the present time, I would probably 
 
            fuse her from 4 to 1.  Question whether 3-4 needs 
 
            to be fused.  I am going to set up an MRI scan for 
 
            evaluation of other levels of DDD.
 
            
 
            
 
                 She also saw Thorir S. Ragnarsson, M.D.  He opined:
 
            
 
                 The patient has had plain films of the lumbar 
 
                 spine showing Grade I spondylolisthesis at the 
 
                 L4-L5 level with marked degenerative change of the 
 
                 facet joints and mild osteoarthritic changes 
 
                 throughout the spine.  CT scan also confirms the 
 
                 spondylolisthesis at the L4-5 with marked spinal 
 
                 canal stenosis at that level and marked 
 
                 degenerative change of the L4-5 facet joints.  I 
 
                 do not see a pars defect.  MRI of the spine shows 
 
                 the same marked and severe spinal stenosis at the 
 
                 L4-5 level on the basis of spondylolisthesis.
 
            
 
                 IMPRESSION:  This woman has a Grade I degenerative 
 
                 spondylolisthesis at the L4-5 level with marked 
 
                 spinal canal stenosis.  I think this explains her 
 
                 symptoms of back pain and bilateral leg pain and 
 
                 intermittent numbness.  Her syndrome seems to have 
 
                 been clearly aggravated by a lifting incident at 
 
                 work about 1 1/2 years ago.
 
            
 
                                conclusions of law
 
            
 
                 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 she received an injury on September 3, 
 
            1988, which arose out of and in the course of her 
 
            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. 
 

 
            
 
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            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 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            3, 1988, is causally related to the disability on which she 
 
            now bases her 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, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 

 
            
 
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            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            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 has met her burden of proving she has 
 
            sustained an injury which arose out of and in the course of 
 
            her employment.  Claimant sustained an injury to her low 
 
            back and neck when she climbed over beer kegs in the walk-in 
 
            cooler on September 3, 1988.  Claimant's testimony was 
 
            supported by the testimony of Alma Webster.  Ms. Webster 
 
            wrote on her calendar for September 3, 1988, "Haig Donn got 
 
            hurt."  Ms. Webster had discussed claimant's injury on the 
 
            evening of the occurrence.  It is therefore the 
 
            determination of the undersigned that claimant has sustained 
 
            an injury which arose out of and in the course of her 
 
            employment.
 
            
 
                 Claimant has also met her burden of proving that 
 
            claimant's back condition is due in part to her work injury 
 
            of September 3, 1988.  Claimant's treating chiropractor, Dr. 
 
            Bronson causally relates claimant's condition to the 
 
            incident in question.  He opines that claimant's preexisting 
 
            condition was aggravated by the aforementioned injury.  
 
            Moreover, he writes in his report of June 23, 1989:  "[I]t 
 
            appears that the injury of September 3, 1988 is the major 
 
            contributing factor to the aggravation of her back 
 
            condition."
 
            
 
                 Dr. Kratochvil also found there has been "some 
 
            aggravation of her neck and back condition as a result of 
 
            the injury incurred."
 
            
 
                 In light of the foregoing medical opinions, it is the 
 
            determination of the undersigned that claimant has 
 
            established the requisite causal connection.  Her present 
 
            condition is only due in part to her work injury.
 
            
 
                 Claimant has received impairment ratings from 0 percent 
 
            to 30 percent as a result of her work injury.  Claimant 
 
            contends she has an industrial disability.  Claimant has a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            high school diploma.  She is trained in cosmetology and 
 
            histology, although she has not pursued these areas of 
 
            employment in the recent past.  Claimant's age is working 
 
            against her.  Claimant is physically capable of returning to 
 
            at least light duty employment.  Her former employer has 
 
            terminated her for reasons other than claimant's workers' 
 
            compensation claim.  She has voluntarily determined she is 
 
            incapable of working.  No medical practitioner has 
 
            restricted her from working, although several experts have 
 
            recommended some type of vocational rehabilitation.   To 
 
            date, claimant has not been offered any retraining.  
 
            Claimant does not appear motivated to return to work of any 
 
            type.
 
            
 
                 After considering all of the above, it is the 
 
            determination of the undersigned that claimant has a 
 
            permanent partial disability in the amount of 30 percent.  
 
            However, only 10 percent is attributable to claimant's work 
 
            injury of September 3, 1988.
 
            
 
                 As far as healing period benefits are concerned, 
 
            claimant is entitled to benefits from September 4, 1988 
 
            through December 31, 1988.  This is a period of 17 weeks.  
 
            As of January 1, 1989, claimant could return to 
 
            substantially similar employment.  She had a release from 
 
            her treating chiropractor.  She had reached maximum medical 
 
            improvement.  Claimant is to be paid at the stipulated rate 
 
            of $101.82 per week.
 
            
 
                 Under section 85.27, claimant is also entitled to the 
 
            payment of reasonable and necessary medical expenses.  
 
            Defendants denied liability.  They cannot argue that medical 
 
            charges are unauthorized.  See Holbert v. Townsend Eng'r 
 
            Co., Thirty-Second Biennial Rep., Iowa Indus. Comm'r. 78, 
 
            80 (Review Dec. 1975).
 
            
 
                 Therefore, it is the determination of the undersigned 
 
            that claimant is entitled to the payment of the following:
 
            
 
                 12-26-89     Marian Health Center            $  211.00
 
                 01-08-90        "     "      "                  600.00
 
                 01-30-90        "     "      "                  970.00
 
                 03-20-90     Sioux City Neurology               110.00
 
                 03-26-90     Pat Luse, D.C.                   1,280.00
 
                 02-19-90     Siouxland Orthopedic & Sports      125.00
 
                 06-27-89     Computerized Scanning              395.00
 
                 03-17-89     Bronson Chiropractic             2,295.00
 
                                               Total          $5,986.00
 
            
 
                 Finally there is the issue of section 86.13 penalty 
 
            benefits.  Claimant alleges she is entitled to the same.
 
            
 
                 Section 86.13 of the Iowa Code provides in relevant 
 
            portion:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Under section 86.13, benefits are not awarded for 
 
            medical expenses.  The section 86.13 benefits are only 
 
            applicable to weekly compensation benefits.  Zahn v. Iowa 
 
            State Men's Reformatory, IV Iowa Industrial Commissioner 
 
            Report 409 (1983).
 
            
 
                 If it is alleged that an employer wrongfully withholds 
 
            weekly compensation benefits from a claimant, the claimant 
 
            must establish the benefits were withheld unreasonably in 
 
            order for the claimant to receive additional benefits under 
 
            section 86.13.  Curtis v. Swift Independent Packing, IV Iowa 
 
            Industrial Commissioner Report 88 at 93 (1984).  In a 
 
            previous decision before the Division of Industrial 
 
            Services, a hearing deputy has ruled that it was reasonable 
 
            for an employer to withhold benefits when the employer was 
 
            not alerted to occurrences which would notify a reasonable 
 
            person that benefits would be due or when there was no work 
 
            time lost.  McCormack v. Sunsprout, I-l Iowa Industrial 
 
            Commissioner Decisions 142 at 144 (1984).
 
            
 
                 In a separate decision before the Division of 
 
            Industrial Services, the same deputy industrial commissioner 
 
            awarded benefits under section 86.13.  Here there was an 
 
            unreasonable delay since there were no contradictions in the 
 
            claimant's claim.  Willis v. Ruan Transport Corporation, IV 
 
            Iowa Industrial Commissioner Report 395 at 396 (1984).  In 
 
            the Willis case at 396 the deputy wrote:
 
            
 
                 ...Reports and letters from the doctor are 
 
                 consistent with claimant's statements regarding 
 
                 his injury.
 
            
 
                 There were no ambiguities and inconsistencies in 
 
                 claimant's claim.  Withholding benefits was 
 
                 arbitrary and unreasonable.  The five percent 
 
                 award based on Iowa Code section 86.13 will be 
 
                 attached to healing period only.  Although the 
 
                 evidence presented clearly relates claimant's 
 
                 permanent impairment to his injury, defendants 
 
                 will be given the benefit of the doubt as to 
 
                 whether or not a failure to pay permanent 
 
                 disability also was unreasonable.  Claimant had 
 
                 prior back troubles and conceivably some portion 
 
                 of his impairment might have been related to those 
 
                 difficulties or to a preexisting arthritis rather 
 
                 than to his injury.
 
            
 
                 See also Walter L. Peterman v. American Freight System, 
 
            File No. 747931 (Arbitration Decision August 10, 1988).
 
            
 
                 Claimant has not met her burden of proving that 
 
            defendant Royal Insurance Company did unreasonably withhold 
 
            her weekly compensation.  It would not be unreasonable for 
 
            the carrier to deny the claim.  Claimant had a long history 
 
            of prior back problems.  She had even had prior workers' 
 
            compensation claims.  The back problems dated back to at 
 
            least 1978.  Additionally, there were "the bad feelings" 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            between certain trustees and claimant.  There was no 
 
            question there were personality clashes between them.  
 
            Claimant was distraught.  She had been terminated for 
 
            reasons outside of the workers' compensation laws.  It would 
 
            not have been unreasonable for defendants to believe that 
 
            claimant's workers' compensation claim could have been 
 
            motivated by her terminaton.  Therefore, it is the 
 
            determination of the undersigned that defendant did not 
 
            unreasonably withhold weekly compensation benefits.  
 
            Therefore, claimant is not entitled to section 86.13 penalty 
 
            benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED
 
            
 
                 Defendants are to pay permanent partial disability 
 
            benefits for the period starting January 1, 1989 for fifty 
 
            (50) weeks at the stipulated rate of one hundred one and 
 
            82/l00 dollars ($101.82).
 
            
 
                 Defendants are to pay healing period benefits for the 
 
            period from September 4, 1988 through December 31, 1988, a 
 
            period of seventeen (17) weeks at the stipulated rate of one 
 
            hundred one and 82/l00 dollars ($101.82) per week.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants are to pay claimant's medical expenses in 
 
            the sum of five thousand nine hundred eighty-six and no/l00 
 
            dollars ($5,986.00).
 
            
 
                 Defendants are to provide reasonable and necessary 
 
            future medical benefits.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City  IA  51102
 
            
 
            Mr. Roger Carter
 
            Attorney at Law
 
            Jackson Plaza  STE 300
 
            P O Box 327
 
            Sioux City  IA  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1800; 2206
 
                                               Filed September 17, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA HAID,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 900592
 
            FRATERNAL ORDER OF EAGLES     :
 
            AERIE NO. 77,                 :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1800; 2206
 
            Claimant's work injury aggravated a preexisting back 
 
            condition.  Claimant was 30 percent disabled but only 10 
 
            percent was attributed to this work injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIM PETERSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 900595
 
         GIBSON HOME APPLIANCE,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         HAWKEYE SECURITY INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is an arbitration proceeding brought by claimant, Tim 
 
         Peterson, on February 15, 1989.  Claimant is requesting benefits 
 
         pursuant to the Iowa Workers' Compensation Act.  The case was 
 
         heard in Sioux City, Iowa on January 18, 1990.  The record in the 
 
         proceeding consists of the testimonies of claimant, Jeff Chesher 
 
         and Kip Gibson.  The record also contains claimant's exhibits 
 
         2-23 and defendants' exhibits 1-15.
 
         
 
                                      ISSUES
 
         
 
              The issues presented for determination are whether: 1) 
 
         claimant received an injury which arose out of and in the course 
 
         of employment; 2) whether there is a causal relationship between 
 
         the alleged injury and the disability; 3) whether claimant is 
 
         entitled to temporary disability/healing period benefits or 
 
         permanent partial or total disability benefits; 4) whether 
 
         defendants unreasonably withheld benefits from claimant; and 5) 
 
         whether Auxier notice was given.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant, while working for another employer, injured the 
 
         left side of his neck, the left thoracolumbar area and the lower
 
         
 
         
 
         
 
         PETERSON V. GIBSON HOME APPLIANCE 
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         back.  The injury occurred on November 4, 1987.  Claimant was 
 
         treated by John J. Dougherty, M.D. He released claimant to return 
 
         to work on December 8, 1987.  X-rays were ordered.  As of 
 
         November 23, 1987, the x-rays revealed:
 
         
 
              Lateral of the LS joint looks OK.  Oblique films don't see 
 
              much and facet joints look OK.  Lateral of the DL spine 
 
              standing shows increased lordosis.  Disc spaces appear to be 
 
              maintained.  Lateral inflexion and extension looks good, no 
 
              evidence of instability.  AP of the Dl spine standing shows 
 
              right pelvis to be down about 1/4" [sic] Hip joints look OK.  
 
              Minimal scoliosis to the right.  Lateral of the dorsal spine 
 
              appears to be lined up.  AP of the dorsal spine, minimal 
 
              s-shaped scoliosis to the right in the upper dorsal, to the 
 
              left in the lower dorsal spine.  Lateral of the cervical 
 
              spine some straightening of the cervical spine, questionable 
 
              if he has a little narrowing of 4-5.  Lateral inflexion he 
 
              opens up good.  Repeat lateral shows mild reversal of her 
 
              cervical curve, but I think perhaps the disc spaces are OK.  
 
              Questionable C-5-6., could be a little bit narrowed.  AP of 
 
              the cervical spine, does look like he's got some narrowing 
 
              of Luschka's joints at 5-6.  Open mouth view I think is OK.  
 
              AP of his right shoulder, does not appear remarkable.  Again 
 
              on reviewing the AP of the Dl spine, I don't think we have a 
 
              fracture on the transverse process on the left.  I think 
 
              that is just gas..[sic]
 
              
 
              I don't [sic] think this patient has a great deal of 
 
              difficulty at all.  Has a pot belly.
 
         
 
              Claimant was also examined by Robert A. Durnin, M.D., a 
 
         board certified physician in physical medicine and 
 
         rehabilitation.  Dr. Durnin opined on February 3, 1988:
 
         
 
              [T]his gentleman appears to have a thoraco lumbar disc 
 
              lesion, cervical disc lesion, probably at the C5-6 level and 
 
              a mild left rotator cuff problem.
 
         
 
              Claimant returned to work in 1988 to another employer.  He 
 
         subsequently left that employment for a position with 
 
         defendant-employer.  Claimant was hired by defendant-employer to 
 
         service and repair appliances for claimant.
 
         
 
              At the hearing, claimant testified he was requested by his 
 
         supervisor, Kip Gibson, on January 9, 1989, to assist in 
 
         delivering a dryer to a customer.  The time was approximately 
 
         10:00 a.m. and claimant was to assist a co-employee, Jeff 
 
         Chesher, with the delivery.  Claimant stated, they were asked by 
 
         the salesman to remove the old dryer from the customer's 
 
         basement.  Claimant tes-
 
         
 
         
 
         
 
         PETERSON V. GIBSON HOME APPLIANCE 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         tified Jeff Chesher carried the dryer from the top while claimant 
 
         carried the dryer from the bottom position.  Claimant testified 
 
         they had to carry the dryer one step at a time, and that claimant 
 
         had to push the dryer up the stairs from his position, and that 
 
         they had to turn the dryer at the top of the stairs.  Claimant 
 
         further testified he started to back up, and the dryer fell on 
 
         claimant.  Claimant testified he yelled, "I'm caught!", and that 
 
         the dryer was lifted out of the stairwell by backing out the 
 
         door.
 
         
 
              Claimant also testified he did not realize he was injured, 
 
         but he was stiff and sore at a later point in time.  Claimant 
 
         testified the back of his head and neck hurt and his arms hurt.  
 
         He stated he informed Mr. Kip Gibson, "The dryer about killed 
 
         me."  Claimant indicated he informed Gibson about the injury but 
 
         Gibson did not reply.
 
         
 
              Claimant testified he went home for lunch and laid on the 
 
         couch.  He reported he did not return to work that day because 
 
         his neck and arm were stiff.
 
         
 
              Mr. Jeff Chesher testified at the hearing.  He recalled the 
 
         delivery made on January 9, 1989, with claimant.  Mr. Chesher 
 
         testified a dryer was unloaded from a pick-up truck by hand.  He 
 
         stated claimant did not voice a complaint of back and neck pain.  
 
         Mr. Chesher testified he and claimant brought the old dryer up 
 
         the stairs.  The landing was small and the witness reported they 
 
         had to turn the dryer in the stairway.  Mr. Chesher agreed he was 
 
         in the top position and there was very little to grab.  He 
 
         testified claimant was lifting from a position below the witness.  
 
         Mr. Chesher testified he did not recall that the dryer had 
 
         fallen, nor did he lose his grip on the dryer.  Mr. Chesher 
 
         testified claimant did not yell for help and the witness never 
 
         heard claimant complain of any injuries.
 
         
 
              Mr. Chesher also testified that after the dryer was 
 
         delivered claimant spoke with the customer about purchasing the 
 
         customer's table saw.  According to Mr. Cheser's testimony, he 
 
         and claimant drove back to the shop and claimant stated, "Tell 
 
         them, I hurt my back."
 
         
 
              Mr. Chesher testified he thought claimant was joking and he 
 
         replied, "I think I'll tell them that too."
 
         
 
              Mr. Chesher also testified he returned to the shop and Mr. 
 
         Gibson asked where Tim was.  Mr. Chesher testified he replied 
 
         jokingly, "Tim had hurt his back."
 
         
 
              Kip Gibson testified that on January 9, 1989, claimant 
 
         stated he had hurt his back on the job and he needed to go home 
 
         and rest.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         PETERSON V. GIBSON HOME APPLIANCE
 
         Page 4
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              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(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 9, 1989, 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 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm. Sch. Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 
 
         1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant's rendition of his alleged injury was not 
 
         believable.  Claimant was not a credible witness.  Claimant did 
 
         not sustain an injury which arose out of and in the course of his 
 
         employment.  There were several instances which led the 
 
         undersigned to determine claimant was less than credible.  
 
         Firstly, an eyewitness, Mr. Chesher, did not corroborate 
 
         claimant's account of the events on January 9, 1989.  Mr. Chesher 
 
         did not see any dryer fall on claimant's neck.  Nor did Mr. 
 
         Chesher hear claimant verbalize such an event.  Next, Mr. Chesher 
 
         testified, claimant had asked the witness to report to the boss a 
 
         work injury which had not occurred.
 
         
 
              Next, there was the comment written by Dr. Dougherty in his 
 
         notes for December 8, 1987.  He writes: "I'm not impressed with 
 
         the amount of discomfort this guy is having."  Apparently, Dr. 
 
         Dougherty also questioned claimant's capacity for veracity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PETERSON V. GIBSON HOME APPLIANCE
 
         Page 5
 
         
 
         
 
              Next, there were the statements made by claimant relative to 
 
         the service station business which was leased in July of 1989.  
 
         It was extremely difficult for the undersigned to accept 
 
         claimant's statements that he did little, if anything, but sit 
 
         around the station for two hours a day while his wife performed 
 
         all of the routine duties at the service station.
 
         
 
              Finally, there was the admission by claimant.  He stated he 
 
         had purchased stolen chain saws.  All formal criminal charges had 
 
         been dismissed against claimant, nevertheless, the above 
 
         demonstrated claimant's overall "respect for truth and veracity."
 
         
 
              Therefore, in light of all of the above, as well as the 
 
         observations made of claimant, it is the determination of the 
 
         undersigned that claimant did not sustain an injury which arose 
 
         out of and in the course of his employment.
 
         
 
                                      ORDER
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              Each party shall bear his/its own costs of this action.
 
         
 
              Signed and filed this 30th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         Mr. Edward J. Keane
 
         Mr. Daniel L. Flaherty 
 
         Attorneys at Law
 
         400 First National Bank Bldg
 
         P 0 Box 1768
 
         Sioux City  IA  51102
 
         
 
         Mr. Willis J. Hamilton
 
         Attorney at Law
 
         P 0 Box 188
 
         606 Ontario St
 
         Storm Lake IA 50588
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1100
 
                                         Filed May 30, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIM PETERSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 900595
 
         GIBSON HOME APPLIANCE,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                           D E C I S I 0 N
 
         and
 
         
 
         HAWKEYE SECURITY INSURANCE 
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1100
 
         
 
              Claimant's rendition of an alleged work injury was not 
 
         credible.  Claimant did not sustain an injury which arose out of 
 
         and in the course of his employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            WILLIAM BOOMGAARDEN,            :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 900660
 
            IOWA LAMB,                      :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            AETNA CASUALTY & SURETY         :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      issues
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                 I.  Did the deputy industrial commissioner err in 
 
                 concluding a causal connection existed between 
 
                 claimant's injury of June 26, 1988 and any 
 
                 disability from which he now suffers?
 
            
 
                 II.  Did the deputy industrial commissioner err in 
 
                 concluding that claimant was entitled to healing 
 
            aimant worked two hours on June 27 before 
 
            leaving, but has never returned to work.
 
            
 
                 Claimant was first seen by Larry D. Armstrong, D.C.  On 
 
            July 11, 1988, Dr. Armstrong wrote that claimant had 
 
            sustained a lumbosacral sprain and right leg sciatica in the 
 
            lifting incident and had been progressing well until July 6, 
 
            but that pain thereafter increased.  Claimant was jaundiced, 
 
            and Dr. Armstrong referred claimant to a physician who 
 
            hospitalized him for other reasons on July 8.  Claimant was 
 
            dismissed from care, and Dr. Armstrong wrote he had been off 
 
            work from June 30 through July 8 by reason of the work 
 
            injury, but that subsequent lost time was not work related.
 
            
 
                 Claimant was hospitalized at Hawarden Community 
 
            Hospital from July 8 through July 11, 1988, and subsequently 
 
            at Marian Health Center from July 11 through August 16, 
 
            1988.  However, the back and leg injury proved to be but one 
 
            problem among many.  The discharge diagnosis of Monte J. 
 
            Harvey, D.O., (Hawarden Community Hospital) was of (1) 
 
            pneumonia with septicemia, etiology unknown; (2) low back 
 
            pain with radiation, but no evidence of disc disease or 
 
            nerve impingement; and (3) hepatic enlargement and 
 
            cirrhosis.  Discharge diagnosis of Kenneth A. Miller, D.O., 
 
            (Hawarden) was of possible ruptured intervertebral disc, 
 
            acute lumbosacral myofascitis.  A pelvic x-ray read by D. R. 
 
            Wierda, M.D., showed narrowing of the cartilaginous joint 
 
            space of the right hip with associated minor degenerative 
 
            spurring.  A lumbosacral view was normal.
 
            
 
                 Claimant's long stay in the Marian Health Center 
 
            resulted in the following discharge diagnoses by W. R. 
 
            Blankenship, M.D.:
 
            
 
                 1.  Staph septicemia with # 2.
 
                 2.  Pneumonia.
 
                 3.  Alcoholism.
 
                 4.  Alcoholic liver disease, probable cirrhosis.
 
                 5.  Degenerative arthritis with recent hip injury.
 
                 6.  Gastrointestinal bleeding, requiring transfusion.
 
                 7.  Hepatic insufficiency, secondary to #4.
 
                 8.  Antibiotic associated pseudomembranous colitis.
 
            
 
                 Discharge diagnosis of M. Persaud, D.O., was of:
 
            
 
                 1.  Left lower lobe pneumonia.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 2.  Staph septicemia presumably related to the
 
                     pneumonic process.
 
                 3.  Alcoholic liver disease with severe alcoholic
 
                     hepatitis, probably cirrhosis.
 
                 4.  Degenerative arthritis with severe right hip pain.
 
                 5.  Chronic gingivitis and periodontitis.
 
                 6.  Antibiotic associated colitis.
 
            
 
                 R. J. Dohrmann, D.D.S., wrote of a man who was 
 
            obviously sclerotic and jaundiced with extremely poor oral 
 
            hygiene.  Claimant was clearly a sick man in many ways 
 
            wholly unrelated to the work injury.
 
            
 
                 While at Marian Health Center, claimant was seen by 
 
            orthopaedic surgeon K. G. Liudahl, M.D.  His impression was 
 
            of moderately severe right hip and lower lumbar spine 
 
            posterior facet degenerative arthritis and acute right 
 
            greater trochanteric bursitis, which was treated with 
 
            anti-inflammatory injection.  On July 12, 1988, radiologist 
 
            M. Sandler, M.D., found a spine series normal, but 
 
            degenerative change in the right hip with marked narrowing 
 
            of the joint space and a small osteophyte on the 
 
            infero-medial margin of the acetabulum.  The left hip showed 
 
            no evidence of arthritis.  A bone scan performed by S. A. 
 
            Hultman, M.D., found increased uptake in the left ankle, 
 
            cervical spine, right shoulder and mid dorsal spine most 
 
            compatible with degenerative change, arthritis or previous 
 
            trauma.  Increased uptake in the right hip was significantly 
 
            less than usually seen with a fracture and more likely 
 
            associated with degenerative disease.
 
            
 
                 Dr. Liudahl wrote on July 25, 1988 that claimant had 
 
            admitted he did have some prior intermittent low back 
 
            complaints which became a lot worse at the time of injury.  
 
            He concluded:
 
            
 
                 I feel that this flareup [sic] of his arthritis 
 
                 represents an aggravation of a previous underlying 
 
                 condition and that with time he should get back to 
 
                 his base line history of intermittent low back 
 
                 pain.  I feel that the majority of his medical 
 
                 problems including his liver disease far out weigh 
 
                 these back complaints and that these are of much 
 
                 more serious long term consequences than his back 
 
                 complaints.
 
            
 
                 Claimant was seen by another chiropractor, G. F. 
 
            Stanley, D.C., on August 19 and August 23, 1988.  On these 
 
            occasions, claimant complained of sciatica on the left side.  
 
            Dr. Stanley wrote on August 26 that claimant had been 
 
            totally incapacitated since June 28, but there is no 
 
            indication in the record as to what degree this view was 
 
            based on the work injury as opposed to other health problems 
 
            and left-sided sciatica.
 
            
 
                 However, claimant was readmitted to Marian Health 
 
            Center on October 5 and underwent a total hip replacement by 
 
            Dr. Liudahl on October 6, 1988.  Diagnosis was of 
 
            degenerative arthritis to the right hip and stable alcoholic 
 
            cirrhosis. Dr. Liudahl's operative notes reflect that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cemented osteotomy components were the best choice for 
 
            claimant due to his "markedly decreased life expectancy, 
 
            secondary to his alcoholic cirrhosis."  Dr. Liudahl 
 
            certified claimant as "off work till further notice" on 
 
            September 6, 1988.  Dr. Liudahl has never released claimant 
 
            to return to work and has never imposed specific medical 
 
            limitations, although claimant testified that the doctor 
 
            told him to "find a job, then come back and I'll see if you 
 
            can do it."  In a letter dated September 30, 1988, Dr. 
 
            Liudahl wrote that claimant's degenerative hip arthritis was 
 
            a long-standing problem not related to his work injury and 
 
            that the subsequent hip replacement "thus" could not be 
 
            considered a work injury.  "I do believe the flareup of the 
 
            arthritis and the bursitis that he had during his recent 
 
            hospitalization were related to his work injury but not the 
 
            underlying arthritis."  Dr. Liudahl has never imposed an 
 
            impairment rating or indicated when claimant reached maximum 
 
            healing following surgery.
 
            
 
                 Claimant was seen for evaluation by Pat Luse, D.C., on 
 
            July 10, 1990.  Dr. Luse found that claimant had sustained a 
 
            reduction in range of motion of the hip and reported 
 
            continued pain.  Gait was limping.  In summary, Dr. Luse 
 
            wrote:
 
            
 
                 It is apparent this patient had pre-existing DJD.  
 
                 However, this patient was and able to do work that 
 
                 required lifting hundreds of pounds prior to the 
 
                 accident.  This accident traumatized an already 
 
                 arthritic joint and precipitated the problem 
 
                 eventually requiring surgical intervention.  It is 
 
                 my opinion this accident is responsible for 11% 
 
                 impairment to lower extremity or 4% to the whole 
 
                 body.
 
            
 
                 Just prior to his summary, Dr. Luse rated total 
 
            impairment to the lower extremity at 33 percent, and right 
 
            hip arthroplasty at 20 percent.  Thus, it seems probable 
 
            that Dr. Luse in his summary was rating the portion of total 
 
            impairment caused by the work injury, else this 
 
            inconsistency cannot be rationalized.  Dr. Luse did not 
 
            suggest physical restrictions.
 
            
 
                                conclusions of law
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed March 14, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury on June 26, 1988.  They dispute whether the 
 
            injury caused temporary disability, and especially whether 
 
            it caused permanent disability by reason of the October 
 
            total hip replacement.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 26, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 *****
 
            
 
                 [There is no question that claimant's work did not 
 
            cause his preexisting degenerative arthritis in the right 
 
            hip.  Dr. Liudahl clearly stated this opinion.  There is no 
 
            reliable contradictory medical evidence on this point.  The 
 
            parties have stipulated that claimant sustained a work 
 
            injury on June 26, 1988.  The dispute is whether claimant's 
 
            work caused an injury to his hip.
 
            
 
                 When the work incident occurred on June 26, 1988 
 
            claimant thought he had hurt his right leg and may have 
 
            pulled a muscle.  The first treatment he sought (from Dr. 
 
            Armstrong) was for a lumbosacral strain and right leg 
 
            sciatica.  Dr. Armstrong indicated that claimant missed work 
 
            until July 8 because of the work injury but subsequent lost 
 
            time was not work related.  Dr. Liudahl's September 30, 1988 
 
            letter is confusing.  It appears that Dr. Liudahl's opinion 
 
            was that the "flareup" was caused by claimant's 
 
            hospitalization.  Claimant's hospitalization was because of 
 
            a variety of problems and not merely treatment for a back 
 
            and leg pain.  Also, it is unclear whether the "flareup" Dr. 
 
            Liudahl described is an aggravation, acceleration, worsening 
 
            or lighting up that results in a disability.  It is unlikely 
 
            that claimant's hip condition came about by some means other 
 
            than the natural tearing down of claimant's body caused by 
 
            his degenerative arthritis.
 
            
 
                 There are conflicting opinions between two 
 
            chiropractors in this case.  Dr. Armstrong indicated that 
 
            claimant's problems after July 8 were not work related.  Dr. 
 
            Luse indicated that there was a causal connection between 
 
            the work incident and claimant's hip condition.  Dr. 
 
            Armstrong's opinion will be accepted.  He treated claimant 
 
            within two weeks after the injury while Dr. Luse merely 
 
            evaluated claimant more than two years after the injury.
 
            
 
                 Claimant has the burden of proving that a work incident 
 
            resulted in a disability to his hip.  Claimant has not met 
 
            his burden of proof.  Claimant's work injury on June 26, 
 
            1988 was to the back and right leg and not to his hip.
 
            
 
                 According to Dr. Armstrong, claimant's back and leg 
 
            problems were only disabling through July 8, 1988.  Claimant 
 
            is therefore entitled to temporary total disability benefits 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            from June 27, 1988 through July 8, 1988.
 
            
 
                 The parties have stipulated to an injury that occurred 
 
            on June 26, 1988.  That injury required medical treatment 
 
            for claimant's back and leg.  Given the myriad of claimant's 
 
            other medical problems it appears that claimant's medical 
 
            bills incurred after July 8, 1888 were not for the treatment 
 
            of his June 26, 1988 injury.  The defendants are liable for 
 
            the medical treatment of claimant's back and leg injury.]
 
            
 
                 Claimant also seeks compensation for an independent 
 
            medical examination under Iowa Code section 85.39.  
 
            According to the statute, if defendants are otherwise 
 
            liable, 85.39 entitlement is triggered "[i]f an evaluation 
 
            of permanent disability has been made by a physician 
 
            retained by the employer and the employee believes this 
 
            evaluation to be too low."  The record does not reflect that 
 
            any employer-retained physician has evaluated permanent 
 
            disability, high or low.  Accordingly, the record does not 
 
            support an award under that section.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant one point seven one four 
 
            (1.714) weeks of temporary total disability benefits at the 
 
            rate of one hundred seventy-eight and 87/100 dollars 
 
            ($178.87) per week from June 27, 1988 through July 8, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 That defendants shall pay the medical expenses for the 
 
            treatment of claimant's back and right leg.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1402.40; 1801; 5-2500
 
            Filed January 28, 1993
 
            Byron K. Orton
 
            DRR
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            WILLIAM BOOMGAARDEN,            :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 900660
 
            IOWA LAMB,                      :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            AETNA CASUALTY & SURETY         :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            1402.40
 
            Claimant failed to prove that a work incident aggravated a 
 
            preexisting arthritic hip condition.  Claimant testified 
 
            that he hurt his leg and that he thought he pulled a muscle.  
 
            The first treatment he sought was for back and leg 
 
            complaints.  The medical care provider that treated claimant 
 
            first indicated that treatment of claimant after the first 
 
            two weeks was not work related.  Other medical opinion on 
 
            causal connection was either unclear or rejected.
 
            
 
            1801
 
            Claimant was entitled to temporary total disability for the 
 
            time he missed work until he began treatment for a variety 
 
            of health problems not related to his work injury.
 
            
 
            5-2500
 
            Defendants were liable for medical treatment of stipulated 
 
            injury to the back and leg.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM BOOMGAARDEN,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 900660
 
                                          :
 
            IOWA LAMB,                    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the May 12, 
 
            1989 petition filed by claimant, William Boomgaarden, 
 
            seeking benefits under the Iowa Workers' Compensation Act 
 
            from defendant employer, Iowa Lamb, and its insurance 
 
            carrier, Aetna Casualty & Surety Company.  Claimant 
 
            sustained an injury arising out of and in the course of that 
 
            employment on June 26, 1988, although the parties vigorously 
 
            dispute whether subsequent hip replacement surgery was 
 
            causally related to that injury.
 
            
 
                 The cause came on for hearing in Sioux City, Iowa, on 
 
            September 12, 1990.  The record consists of joint exhibits 1 
 
            through 14, claimant's exhibits 15 through 16 and the 
 
            testimony of claimant and William Brennan.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Iowa Lamb on June 26, 1988 and that defendants paid 
 
            certain benefits on a voluntary basis prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the stipulated work injury and any subsequent temporary or 
 
            permanent disability;
 
            
 
                 2.  The nature and extent of claimant's disability, if 
 
            any;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            under Iowa Code section 85.27; and,
 
            
 
                 4.  Whether claimant is entitled to compensation under 
 
            Iowa Code section 85.39 for an independent medical 
 
            examination performed by Pat Luse, D.C.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 William Boomgaarden, 57 years of age at the time of 
 
            hearing, has only a sixth grade education and is weak in 
 
            reading and writing.  However, he can write and is capable 
 
            of reading an ordinary newspaper.
 
            
 
                 Claimant worked on the family farm until about age 33, 
 
            and has thereafter worked as a construction laborer, 
 
            bartender, cement truck driver and in various meat 
 
            packinghouses, both as a maintenance worker and, to a lesser 
 
            extent, as a line worker.  He had worked for Iowa Lamb 
 
            approximately five years prior to June 26, 1988.  Various 
 
            jobs held during that time included boning heads, mechanical 
 
            work, meat trimming and utility man (filling in on the 
 
            line).  All those jobs involved a degree of heavy lifting.
 
            
 
                 The work injury occurred when claimant's right foot 
 
            slipped on a wet spot while he and another man were lifting 
 
            and pouring a nearly 400-pound barrel of lamb gullets.  This 
 
            incident occurred near the end of the work day.  Claimant 
 
            worked two hours on June 27 before leaving, but has never 
 
            returned to work.
 
            
 
                 Claimant was first seen by Larry D. Armstrong, D.C.  On 
 
            July 11, 1988, Dr. Armstrong wrote that claimant had 
 
            sustained a lumbosacral sprain and right leg sciatica in the 
 
            lifting incident and had been progressing well until July 6, 
 
            but that pain thereafter increased.  Claimant was jaundiced, 
 
            and Dr. Armstrong referred claimant to a physician who 
 
            hospitalized him for other reasons on July 8.  Claimant was 
 
            dismissed from care, and Dr. Armstrong wrote he had been off 
 
            work from June 30 through July 8 by reason of the work 
 
            injury, but that subsequent lost time was not work related.
 
            
 
                 Claimant was hospitalized at Hawarden Community 
 
            Hospital from July 8 through July 11, 1988, and subsequently 
 
            at Marian Health Center from July 11 through August 16, 
 
            1988.  However, the back and leg injury proved to be but one 
 
            problem among many.  The discharge diagnosis of Monte J. 
 
            Harvey, D.O., (Hawarden Community Hospital) was of (1) 
 
            pneumonia with septicemia, etiology unknown; (2) low back 
 
            pain with radiation, but no evidence of disc disease or 
 
            nerve impingement; and (3) hepatic enlargement and 
 
            cirrhosis.  Discharge diagnosis of Kenneth A. Miller, D.O., 
 
            (Hawarden) was of possible ruptured intervertebral disc, 
 
            acute lumbosacral myofascitis.  A pelvic x-ray read by D. R. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Wierda, M.D., showed narrowing of the cartilaginous joint 
 
            space of the right hip with associated minor degenerative 
 
            spurring.  A lumbosacral view was normal.
 
            
 
                 Claimant's long stay in the Marian Health Center 
 
            resulted in the following discharge diagnoses by W. R. 
 
            Blankenship, M.D.:
 
            
 
                 1.  Staph septicemia with # 2.
 
                 2.  Pneumonia.
 
                 3.  Alcoholism.
 
                 4.  Alcoholic liver disease, probable cirrhosis.
 
                 5.  Degenerative arthritis with recent hip injury.
 
                 6.  Gastrointestinal bleeding, requiring transfusion.
 
                 7.  Hepatic insufficiency, secondary to #4.
 
                 8.  Antibiotic associated pseudomembranous colitis.
 
            
 
                 Discharge diagnosis of M. Persaud, D.O., was of:
 
            
 
                 1.  Left lower lobe pneumonia.
 
                 2.  Staph septicemia presumably related to the
 
                     pneumonic process.
 
                 3.  Alcoholic liver disease with severe alcoholic
 
                     hepatitis, probably cirrhosis.
 
                 4.  Degenerative arthritis with severe right hip pain.
 
                 5.  Chronic gingivitis and periodontitis.
 
                 6.  Antibiotic associated colitis.
 
            
 
                 R. J. Dohrmann, D.D.S., wrote of a man who was 
 
            obviously sclerotic and jaundiced with extremely poor oral 
 
            hygiene.  Claimant was clearly a sick man in many ways 
 
            wholly unrelated to the work injury.
 
            
 
                 While at Marian Health Center, claimant was seen by 
 
            orthopaedic surgeon K. G. Liudahl, M.D.  His impression was 
 
            of moderately severe right hip and lower lumbar spine 
 
            posterior facet degenerative arthritis and acute right 
 
            greater trochanteric bursitis, which was treated with 
 
            anti-inflammatory injection.  On June 12, 1988, radiologist 
 
            M. Sandler, M.D., found a spine series normal, but 
 
            degenerative change in the right hip with marked narrowing 
 
            of the joint space and a small osteophyte on the 
 
            infero-medial margin of the acetabulum.  The left hip showed 
 
            no evidence of arthritis.  A bone scan performed by S. A. 
 
            Hultman, M.D., found increased uptake in the left ankle, 
 
            cervical spine, right shoulder and mid dorsal spine most 
 
            compatible with degenerative change, arthritis or previous 
 
            trauma.  Increased uptake in the right hip was significantly 
 
            less than usually seen with a fracture and more likely 
 
            associated with degenerative disease.
 
            
 
                 Dr. Liudahl wrote on July 25, 1988 that claimant had 
 
            admitted he did have some prior intermittent low back 
 
            complaints which became a lot worse at the time of injury.  
 
            He concluded:
 
            
 
                 I feel that this flareup [sic] of his arthritis 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 represents an aggravation of a previous underlying 
 
                 condition and that with time he should get back to 
 
                 his base line history of intermittent low back 
 
                 pain.  I feel that the majority of his medical 
 
                 problems including his liver disease far out weigh 
 
                 these back complaints and that these are of much 
 
                 more serious long term consequences than his back 
 
                 complaints.
 
            
 
                 Claimant was seen by another chiropractor, G. F. 
 
            Stanley, D.C., on August 19 and August 23, 1988.  On these 
 
            occasions, claimant complained of sciatica on the left side.  
 
            Dr. Stanley wrote on August 26 that claimant had been 
 
            totally incapacitated since June 28, but there is no 
 
            indication in the record as to what degree this view was 
 
            based on the work injury as opposed to other health problems 
 
            and left-sided sciatica.
 
            
 
                 However, claimant was readmitted to Marian Health 
 
            Center on October 5 and underwent a total hip replacement by 
 
            Dr. Liudahl on October 6, 1988.  Diagnosis was of 
 
            degenerative arthritis to the right hip and stable alcoholic 
 
            cirrhosis. Dr. Liudahl's operative notes reflect that 
 
            cemented osteotomy components were the best choice for 
 
            claimant due to his "markedly decreased life expectancy, 
 
            secondary to his alcoholic cirrhosis."  Dr. Liudahl 
 
            certified claimant as "off work till further notice" on 
 
            September 6, 1988.  Dr. Liudahl has never released claimant 
 
            to return to work and has never imposed specific medical 
 
            limitations, although claimant testified that the doctor 
 
            told him to "find a job, then come back and I'll see if you 
 
            can do it."  In a letter dated September 30, 1988, Dr. 
 
            Liudahl wrote that claimant's degenerative hip arthritis was 
 
            a longstanding problem not related to his work injury and 
 
            that the subsequent hip replacement "thus" could not be 
 
            considered a work injury.  "I do believe the flareup of the 
 
            arthritis and the bursitis that he had during his recent 
 
            hospitalization were related to his work injury but not the 
 
            underlying arthritis."  Dr. Liudahl has never imposed an 
 
            impairment rating or indicated when claimant reached maximum 
 
            healing following surgery.
 
            
 
                 Claimant was seen for evaluation by Pat Luse, D.C., on 
 
            July 10, 1990.  Dr. Luse found that claimant had sustained a 
 
            reduction in range of motion of the hip and reported 
 
            continued pain.  Gait was limping.  In summary, Dr. Luse 
 
            wrote:
 
            
 
                 It is apparent this patient had pre-existing DJD.  
 
                 However, this patient was and able to do work that 
 
                 required lifting hundreds of pounds prior to the 
 
                 accident.  This accident traumatized an already 
 
                 arthritic joint and precipitated the problem 
 
                 eventually requiring surgical intervention.  It is 
 
                 my opinion this accident is responsible for 11% 
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 impairment to lower extremity or 4% to the whole 
 
                 body.
 
            
 
                 Just prior to his summary, Dr. Luse rated total 
 
            impairment to the lower extremity at 33 percent, and right 
 
            hip arthroplasty at 20 percent.  Thus, it seems probable 
 
            that Dr. Luse in his summary was rating the portion of total 
 
            impairment caused by the work injury, else this 
 
            inconsistency cannot be rationalized.  Dr. Luse did not 
 
            suggest physical restrictions.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained a 
 
            work injury on June 26, 1988.  They dispute whether the 
 
            injury caused temporary disability, and especially whether 
 
            it caused permanent disability by reason of the October 
 
            total hip replacement.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 26, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Although claimant no doubt suffers from preexisting 
 
            degenerative arthritis in the right hip, there seems little 
 
            question but that this condition was aggravated, 
 
            accelerated, worsened and lighted up by the subject work 
 
            injury.  The treating orthopaedic surgeon, Dr. Liudahl, 
 
            opined that the underlying condition had been aggravated by 
 
            the work injury as a "flareup."  He drew the legal 
 
            conclusion that there was no causal nexus between the work 
 
            injury and subsequent total hip replacement because of the 
 
            underlying condition.  Yet, the evidence shows that claimant 
 
            did suffer an aggravation of that condition in his slip and 
 
            fall and that pain was not relieved between the injury and 
 
            the October surgery.  On July 25, he wrote that the previous 
 
            underlying condition had been aggravated and that he 
 
            anticipated in the future claimant would "get back to his 
 
            base line history of intermittent low back pain."  Although 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            not a treating physician, chiropractor Luse concluded that 
 
            the work injury traumatized an already arthritic joint and 
 
            precipitated the surgical intervention.  The record does not 
 
            show that claimant sought any treatment to the right hip 
 
            prior to the work injury.  The record further does not show 
 
            hip symptoms resolving between the injury and the subsequent 
 
            surgery.  Claimant has met his burden of proof by 
 
            establishing that the injury aggravated, accelerated, 
 
            worsened and lighted up his preexisting arthritic hip.  The 
 
            hip replacement may indeed have proven necessary at some 
 
            point if claimant had not suffered this injury, but it was 
 
            this injury that lighted up the degenerative problem and 
 
            necessitated surgical intervention.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Dr. Liudahl has never released claimant to return to 
 
            work.  It is not clear from the record whether this is due 
 
            to claimant's numerous other medical problems, or strictly 
 
            because of the hip replacement.  Since he advised claimant 
 
            to find a job first to see whether he would be released, 
 
            there is an implication that claimant could perform at least 
 
            some work.
 
            
 
                 Dr. Armstrong, the first physician to see claimant, 
 
            opined that claimant was off work until July 9, 1988, by 
 
            reason of the subject work injury.  He did not treat 
 
            claimant thereafter.  However, apparently claimant's low 
 
            back and leg condition was sufficiently improved as of that 
 
            time as to allow work, but for the numerous other severe 
 
            health problems which incapacitated claimant at that time.  
 
            This is a period of one week, six days.  Healing period can 
 
            be interrupted or intermittent.  Willis v. Lehigh Portland 
 
            Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner 
 
            Decisions 485 (1984).  Claimant was subsequently taken off 
 
            work by Dr. Liudahl effective September 6, 1988.  This 
 
            commenced a second period of temporary disability.  Based on 
 
            an examination of July 10, 1990, Dr. Luse was able to rate 
 
            claimant's impairment.  An impairment rating implies that 
 
            maximum medical recuperation has been reached and can end 
 
            the healing period.  Lowe v. Iowa State Penitentiary, file 
 
            number 776977 (App. Decn., December 16, 1988).  Accordingly, 
 
            it is held that claimant is also entitled to healing period 
 
            benefits from September 6, 1988 through July 10, 1990, 
 
            totalling 96 weeks, 1 day.  Accordingly, he is entitled to 
 
            98 weeks of intermittent healing period benefits as above 
 
            calculated.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            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, 1985).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Determination of industrial disability is, on this 
 
            record, of necessity a rough approximation only.  Claimant 
 
            has not been released to work and has apparently not 
 
            attempted to find work.  He is currently receiving Social 
 
            Security disability benefits.  Dr. Liudahl has not imposed 
 
            specific medical restrictions.  It is undisputed that 
 
            claimant has an impairment to the body as a whole, but it is 
 
            unclear from what work he is now disabled because of his hip 
 
            injury that he might have performed before.  The issue is 
 
            clouded by the serious and unrelated medical problems also 
 
            afflicting Mr. Boomgaarden.
 
            
 
                 Nonetheless, it seems clear that a 55-year-old man who 
 
            has devoted his life primarily to labor will normally suffer 
 
            some loss of earning capacity from a total hip replacement.  
 
            Claimant has only a sixth grade education, and does not 
 
            appear at this age to be suitable for retraining in 
 
            characteristically white-collar employment.  No doubt he 
 
            would be impaired to some degree in performing work as a 
 
            grain farmer.  He probably could take work as a bartender, 
 
            but work as a heavy laborer may well be foreclosed.  It is 
 
            wholly unclear what maintenance or janitorial work might now 
 
            be suitable given that claimant has not been released and 
 
            specific medical restrictions have not been imposed to date.  
 
            Nonetheless, it appears certain that William Boomgaarden 
 
            would be less attractive to at least some potential 
 
            employers by reason of this serious injury.
 
            
 
                 The inadequacy of this record raises the issue of 
 
            speculative damages.  Recovery will be denied if it is 
 
            speculative and uncertain whether damage has actually been 
 
            sustained, but not merely because, as here, the amount of 
 
            damages is difficult to ascertain.  Robinson v. Perpetual 
 
            Servs. Corp., 412 N.W.2d 562 (Iowa 1987).  Given these 
 
            considerations in specific and the record otherwise in 
 
            general, it is held that claimant has sustained an 
 
            industrial disability equivalent to 30 percent of the body 
 
            as a whole, or 150 weeks.
 
            
 
                 The parties stipulated to average gross weekly earnings 
 
            of $267.00, a marital status of married and entitlement to 
 
            three exemptions.  The workers' compensation benefit 
 
            schedule adopted by this office and effective July 1, 1987 
 
            reflects that an individual so situated is entitled to a 
 
            weekly compensation rate of $178.87.
 
            
 
                 The parties dispute claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27.  It is stipulated 
 
            that the provider of services would testify that the fees 
 
            were reasonable in the absence of contrary evidence.  It is 
 
            disputed whether the expenses were incurred for reasonable 
 
            and necessary medical treatment.  The bills allowed below 
 
            appear to this observer to have been so incurred.  
 
            Claimant's exhibits 16 through 26 show numerous medical 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            charges, only some of which were related to the subject work 
 
            injury as opposed to his many other health problems.  The 
 
            following appear to be causally connected to the work 
 
            injury:
 
            
 
            Exhibit 21    Marian Health Center   $   19.00
 
                                                     50.00
 
                                                     20.00
 
                                                     50.00
 
                                                     75.00
 
                                                    255.00              
 
                          Total                               $   469.00
 
            
 
            Exhibit 22    Marian Health Center                $10,515.03
 
            
 
            Exhibit 25    Orthopaedic Associates
 
                             of Sioux City       $   75.00
 
                                                     50.00
 
                                                     50.00
 
                                                    755.00
 
                                                  3,348.00
 
                                                    103.00
 
                                                    148.00              
 
                          Total                               $ 4,529.00
 
            
 
            Exhibit 26    Booth Pharmacy         $   30.39
 
                                                     30.39              
 
                          Total                               $    60.78
 
            
 
                                                                        
 
            Total                                             $15,573.81
 
            
 
                 Claimant also seeks compensation for an independent 
 
            medical examination under Iowa Code section 85.39.  
 
            According to the statute, if defendants are otherwise 
 
            liable, 85.39 entitlement is triggered "[i]f an evaluation 
 
            of permanent disability has been made by a physician 
 
            retained by the employer and the employee believes this 
 
            evaluation to be too low."  The record does not reflect that 
 
            any employer-retained physician has evaluated permanent 
 
            disability, high or low.  Accordingly, the record does not 
 
            support an award under that section.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 Defendants shall pay unto claimant ninety-eight (98) 
 
            weeks of healing period benefits from June 26, 1988 through 
 
            July 8, 1988 and September 6, 1988 through July 10, 1990 at 
 
            the rate of one hundred seventy-eight and 87/100 dollars 
 
            ($178.87) per week, totalling seventeen thousand five 
 
            hundred twenty-nine and 26/100 dollars ($17,529.26).
 
            
 
                 Defendants shall pay unto claimant one hundred fifty 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            (150) weeks of permanent partial disability benefits at the 
 
            rate of one hundred seventy-eight and 87/100 dollars 
 
            ($178.87) per week commencing July 11, 1990 and totalling 
 
            twenty-six thousand eight hundred thirty and 50/100 dollars 
 
            ($26,830.50).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have credit for all voluntary payments 
 
            made to date.
 
            
 
                 Defendants shall pay medical expenses directly to the 
 
            medical service providers as set forth above.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed March 14, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM BOOMGAARDEN,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 900660
 
                                          :
 
            IOWA LAMB,                    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant, age 55 and a chronic alcoholic, suffered injury to 
 
            arthritic but asymptomatic hip, leading to total hip 
 
            replacement.
 
            Surgeon has never released claimant for return to work 
 
            ("find a job, then come back and I'll see if you can do 
 
            it"), given restrictions or rated impairment.  Claimant has 
 
            other serious health problems related to long-term alcohol 
 
            abuse.  These problems contribute to his disability, but are 
 
            not work related.
 
            Claimant has sixth grade education and work history as 
 
            farmer, laborer, maintenance and line worker in 
 
            packinghouses and bartender.
 
            Although record was inadequate, claimant awarded 30 percent 
 
            body as a whole.  Recovery was not barred as too 
 
            speculative.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIGUEL R. BARRAGAN,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 901061
 
            JOHN MORRELL & COMPANY,       :
 
                                          :         A T T O R N E Y
 
                 Employer,                :
 
                                          :              F E E
 
            and                           :
 
                                          :          D I S P U T E
 
            NATIONAL UNION FIRE INS. CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of E. S. Bikakis, attorney for claimant.  Mr. Bikakis filed 
 
            the petition on December 29, 1989, requesting the allowance 
 
            of an attorney lien.  The defendant-employer, John Morrell & 
 
            Company, and the defendant - insurance carrier, National 
 
            Union Fire Insurance Company, were served by certified mail.  
 
            The receipts for the certified mail were signed and placed 
 
            in the file.
 
            
 
                 Claimant, Miguel R. Barragan, was also sent a copy of 
 
            the petition by regular and certified mail at:
 
            
 
                                  510 - 21st St
 
                                  Sioux City, Iowa  51105
 
            
 
                 Both the regular and certified mailings to claimant 
 
            were returned with the notation:  "Return to Sender Moved 
 
            Left No Address."
 
            
 
                 An affidavit of a proof of service was filed on 
 
            December 29, 1989.  In that affidavit Ms. Patricia Harris 
 
            swore:
 
            
 
                      The undersigned, being first duly sworn, 
 
                 states that on the 18th day of December, 1989, she 
 
                 personally mailed to each of the following named 
 
                 companies an Original Notice and Petition and 
 
                 Request for Allowance of Attorney Lien, a true 
 
                 copy of which is attached hereto and made a part 
 
                 hereof, by certified mail, return receipt 
 
                 requested, each such Notice and Petition being 
 
                 mailed in a sealed envelope with proper postage 
 
                 thereon, addressed to the said companies 
 
                 respectively, at their last known Post Office 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 addresses, by depositing the same on said date in 
 
                 a United States Post Office mail receptacle in 
 
                 said County, to-wit:
 
            
 
                           John Morrell & Company
 
                      1200 Bluffs Road
 
                      Sioux City, IA 51107
 
            
 
                           National Union Fire Insurance Co.
 
                      c/o GAB Business Services, Inc.
 
                      P.O. Box 7740
 
                      Des Moines, IA  50322
 
            
 
                 Said copies of return receipts are also attached 
 
                 hereto.
 
            
 
                      That a copy of the Original Notice and 
 
                 Petition and Request for Allowance of Attorney 
 
                 Lien was also mailed to the Claimant, Miguel R. 
 
                 Barragan, by certified mail, return receipt 
 
                 requested, and also by regular mail in a sealed 
 
                 envelope with proper postage thereon, addressed to 
 
                 him at his last known Post Office address, by 
 
                 depositing the same on said date in a United 
 
                 States Post Office mail receptable in said County, 
 
                 to-wit:
 
            
 
                           Miguel R. Barragan
 
                      510 - 21st St.
 
                      Sioux City, IA 51105
 
            
 
                 However, both mailings were returned to the sender 
 
                 marked "Moved Left No Address."
 
            
 
                 An order to file answer to application for attorney 
 
            lien was filed by Deputy Industrial Commissioner Larry P. 
 
            Walshire.  Copies were mailed by regular and certified mail 
 
            to claimant at the aforementioned address.  The letters were 
 
            returned with the notation, "Moved Left No Address."
 
            
 
                 An order closing the record to further evidence or 
 
            activity by claimant was filed by Deputy Walshire.  Copies 
 
            were again sent to claimant by regular and certified mail.  
 
            Again the letters were returned with the same notation.
 
            
 
                 A prehearing telephone conference was held on July 17, 
 
            1990.  Claimant could not participate since he could not be 
 
            contacted.  At the prehearing telephone conference a hearing 
 
            date was set for August 13, 1990 at 5:00 p.m. in Sioux City, 
 
            Iowa at the Woodbury County Courthouse.  Again copies of the 
 
            notice of hearing were sent to claimant by regular and 
 
            certified mail.  They were also returned.
 
            
 
                 At the hearing, E. S. Bikakis appeared.  Since claimant 
 
            did not have notice of the hearing, he could not have been 
 
            expected to appear.
 
            
 
                 At the hearing the following exhibits were admitted:
 
            
 
                 Exhibit 1, a professional statement of E.S. Bikakis; 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Exhibit A, a letter dated March 24, 1989 from Barbara J. 
 
            Jones, adjuster for GAB Business Services, Inc.; Exhibit B, 
 
            an attorney fee contract between Miguel E. Barragan and E. 
 
            S. Bikakis; Exhibit C, a letter dated May 3, 1989 from E. S. 
 
            Bikakis to Barbara Jones, along with various medical bills; 
 
            and, Exhibit D, a letter dated June 6, 1989 from E. S. 
 
            Bikakis to Barbara Jones, along with an itemized expense 
 
            statement from Miguel Barragan.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is whether counsel for 
 
            claimant is entitled to a lien for attorneys' fees.
 
            
 
                                 Findings of Fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant entered into a written fee contract with his 
 
            attorney, E. S. Bikakis on April 21, 1989.  The contract 
 
            provided in relevant portion:
 
            
 
                 1.  EMPLOYMENT. Client employs Attorney to 
 
                 represent Client in connection with a worker's 
 
                 compensation claim against John Morrell & Company 
 
                 for an injury received on 9/9/88.
 
            
 
                 2.  EXPENSES. Client shall pay Attorney for all 
 
                 expenses for telephone calls, travel expense, 
 
                 photocopies, securing records or documents, 
 
                 photographs, hospital records, medical reports, 
 
                 medical examinations, court costs, depositions, 
 
                 expert witness fees, and all other expenses 
 
                 incurred by Attorney on behalf of Client.
 
            
 
                     ...
 
            
 
                 3.2  CONTINGENT FEE. Fee.  In the event of 
 
                 recovery, Client shall pay Attorney the following 
 
                 fee based on the amount of the recovery remaining 
 
                 after payment of all expenses: a fee equal to 33 
 
                 1/3% of the recovery if settled without filing 
 
                 suit; a fee equal to 33 1/3% of the recovery after 
 
                 suit is filed and before notice of appeal to any 
 
                 appellate court; a fee equal to 40% of the 
 
                 recovery after notice of appeal; and a fee equal 
 
                 to 40% of the recovery if retired. IN THE EVENT NO 
 
                 RECOVERY IS MADE, ATTORNEY SHALL RECEIVE NO FEE 
 
                 FOR SERVICES PERFORMED UNDER THIS CONTRACT.  Fee 
 
                 On Termination.  If Client terminates Attorney's 
 
                 employment before conclusion of the case, Client 
 
                 shall pay Attorney a fee based on the fair and 
 
                 reasonable value of the services performed by 
 
                 Attorney before termination.  Other Attorneys.  
 
                 Attorney may employ another attorney or attorneys 
 
                 to assist in this case at Attorney's expense.
 
            
 
                 Initially, GAB, on behalf of defendant-employer, 
 
            refused payment.  Claimant's attorney undertook 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            representation of claimant.  Several letters were mailed to 
 
            the adjuster at GAB requesting payment for medical expenses 
 
            in the sum of $2,911.40 and mileage and meals in the sum of 
 
            $525.30 for a total sum of $3,436.70.
 
            
 
                 Eventually GAB did pay expenses in the sum of 
 
            $3,436.70.  Claimant's attorney was paid $405.30 out of the 
 
            money paid to claimant.  The sum was paid in a check issued 
 
            by GAB.
 
            
 
                 Claimant's attorney alleges he is owed one third of the 
 
            total medical expenses, 1/3 of the mileage and meal 
 
            expenses, 1/3 of any future recovery, plus his expenses.  
 
            Claimant's attorney states his out of pocket expenses 
 
            totaled $114.29.  As of the date of the hearing, claimant's 
 
            attorney requested a lien for $854.56 plus a lien for any 
 
            future recoveries.
 
            
 
                 Claimant's attorney, at the time of the hearing, still 
 
            had no information concerning claimant's current 
 
            whereabouts.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 86.39 provides:
 
            
 
                 All fees or claims for legal, medical, hospital, 
 
                 and burial services rendered under this chapter 
 
                 and chapters 85, 85A, 85B, and 87 are subject to 
 
                 the approval of the industrial commissioner, and 
 
                 no lien for such service is enforceable without 
 
                 the approval of the amount of the lien by the 
 
                 industrial commissioner.  For services rendered in 
 
                 the district court and appellate courts, the 
 
                 attorney's fee is subject to the approval of a 
 
                 judge of the district court.
 
            
 
                 Attorneys' fees are discussed in the case of Sid Austin 
 
            v. P.I.E. Nationwide, File No. 846126 filed on December 13, 
 
            1988.  There Deputy Dubik cited with approval Workmen's 
 
            Compensation Law, Rule and Regulations, 1941 at 41:
 
            
 
                 The fair interpretation of this section of the law 
 
                 imposes the duty upon the Commissioner to 
 
                 determine what may be a fair and reasonable charge 
 
                 of an attorney fee for services rendered an 
 
                 injured employee in Workmen's Compensation matters 
 
                 and those of a physician, which necessarily means 
 
                 the Commissioner's conclusions must be based upon 
 
                 the required service and all facts bearing upon 
 
                 what is a fair and reasonable fee. It needs no 
 
                 suggestion to show that the Commissioner should 
 
                 not permit the financial condition of the injured 
 
                 employee to control or materially influence his 
 
                 judgment, for the reason that may and probably 
 
                 would in many important cases prevent the injured 
 
                 employee from obtaining the benefits of an 
 
                 experience and competent lawyer, ....True, the 
 
                 Commissioner must not shut his eyes and regard the 
 
                 case as one prosecuted for the benefit of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 attorney, but it is fair to say that the better 
 
                 class of attorneys will not ordinarily overcharge 
 
                 for their services thus rendered.  If they do, the 
 
                 Commissioner in justice within the law should not 
 
                 hesitate to disallow any excessive part of the 
 
                 charge.
 
            
 
                 In the Austin case, Deputy Dubik determined the 
 
            attorneys' fees requested were not fair and reasonable 
 
            charges for the services rendered.
 
            
 
                 In the case at hand, claimant's attorney met with 
 
            claimant on at least one occasion.  The attorney also sent 
 
            two letters on behalf of his client.  As a result of the 
 
            attorney's efforts, claimant's medical bills in the sum of 
 
            $2,911.40 and mileage and meals in the sum of $525.30 were 
 
            paid.  Out of the mileage check, the attorney received 
 
            $405.30.  The sum of $114.29 was allocated towards out of 
 
            pocket expenses.  The sum of $291.01 was allocated toward 
 
            attorney's fees.  The aforementioned sums were reasonable in 
 
            light of the services rendered.  See:  Footnote 2 Lawyer and 
 
            Higgs, page 236.  There the authors state at section 28-2:  
 
            "Absent special circumstances, a fee should not be taken on 
 
            medical benefits."
 
            
 
                 No lien for additional fees on amounts previously 
 
            recovered is approved.  A lien for future attorneys' fees is 
 
            not approved as an attorney may only claim a lien on 
 
            workers' compensation benefits payable to claimant as a 
 
            result of the attorney's efforts.  Here, there has been no 
 
            evidence of the attorney's efforts in securing future 
 
            benefits.  Based on all of the evidence, it is the 
 
            determination of the undersigned that Mr. Bikakis has been 
 
            paid a reasonable fee of $291.01 and out of pocket expenses 
 
            Iowa Code section 86.39.  No lien for additional attorneys' 
 
            fees is approved.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED
 
            
 
                 Claimant's attorney takes nothing further from these 
 
            proceedings.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. S. Bikakis
 
            Attorney at Law
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            340 Insurance Centre
 
            507 7th St
 
            Sioux City  IA  51101
 
            
 
            Mr. Miguel R. Barragan
 
            510 - 21st St
 
            Sioux City  IA  51104
 
            REGULAR & CERTIFIED MAIL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1000
 
                                               Filed August 28, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MIQUEL R. BARRAGAN,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 901061
 
            JOHN MORRELL & COMPANY,       :
 
                                          :         A T T O R N E Y
 
                 Employer,                :
 
                                          :              F E E
 
            and                           :
 
                                          :          D I S P U T E
 
            NATIONAL UNION FIRE INS. CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1000
 
            Claimant's attorney only allowed reasonable and necessary 
 
            attorneys' fees for services rendered.  Attorney not awarded 
 
            a lien.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
          
 
            PERRY L. NELSON,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 901096
 
            BASIC MATERIALS CORPORATION,    
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 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.
 
            
 
                                  ISSUES
 
            
 
            The issues on appeal are:  The nature and extent of 
 
            claimant's disability resulting from his March 15, 1988 
 
            injury; the liability, if any, of the Second Injury Fund.
 
            It should be noted that this is a de novo review of the 
 
            deputy's proposed decision.  All briefs in the record, 
 
            including post-hearing briefs, have been considered.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed September 9, 1991 are adopted as final agency 
 
            action.
 
            
 
                            CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed September 9, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            *****
 
            [The first issue to be resolved is the nature and extent of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's disability resulting from his March 15, 1988 
 
            injury.]
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 15, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
 
            868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607, 
 
            613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167, 171 (Iowa 1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 73 N.W.2d at 738.  The opinion of the 
 
            experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 907 (Iowa 1974).  Moreover, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers' Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workers' Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            body. 
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 
 
            760-61 (Iowa 1956).  If the claimant had a preexisting 
 
            condition or disability that is aggravated, accelerated, 
 
            worsened or lighted up so that it results in disability, 
 
            claimant is entitled to recover. Gosek v. Garmer and Stiles 
 
            Co., 158 N.W.2d 731, 737 (Iowa 1968); Barz v. Oler, 133 
 
            N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service 
 
            Stores, 125 N.W.2d 251, 256 (Iowa 1963); Nicks v. Davenport 
 
            Produce Co., 115 N.W.2d 812, 815 (Iowa 1962); Yeager v. 
 
            Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 
 
            1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 
 
            595 (Iowa 1960); Almquist, 254 N.W. at 38.
 
            
 
                 In this case, the expert testimony demonstrates that 
 
            claimant suffered a permanent impairment due to his fall at 
 
            work.  The fall aggravated claimant's preexisting yet 
 
            dormant degenerative arthritis in his left shoulder.  Dr. 
 
            McCoy's testimony regarding the source of claimant's torn 
 
            rotator cuff remains uncontroverted in this record.  He 
 
            found that claimant suffered a 13 percent permanent 
 
            functional impairment to the left upper extremity.  
 
            Moreover, it is clear that the injury extended beyond 
 
            claimant's shoulder into the body as a whole.  Dr. McCoy's 
 
            surgical notes and his testimony indicated that he removed 
 
            part of claimant's collarbone and did substantial work to 
 
            repair claimant's rotator cuff.  This agency has 
 
            consistently held that an injury to the rotator cuff is an 
 
            injury to the body as a whole.  Alm v. Morris Barick Cattle 
 
            Co.,  38 N.W.2d 161, 163 (Iowa 1949); Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281, 282 
 
            (App. 1982) (A torn rotator cuff was found to cause 
 
            disability to the body as a whole); Weiland v. Nelson Foods, 
 
            File No. 744384, Slip op. (Iowa Ind. Comm'r Arb. June 18, 
 
            1987) (Right shoulder injury to rotator cuff is injury to 
 
            body as a whole).  The next aspect of this question is 
 
            whether claimant is permanently and totally disabled as a 
 
            result of the shoulder injury either as an odd-lot employee 
 
            or otherwise.
 
            
 
                 In examining the odd-lot question, there are two cases 
 
            that offer guidance.  In Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101, 105 (Iowa 1985) the Supreme Court adopted the 
 
            odd-lot doctrine.  Under this doctrine, the Court found that 
 
            a worker becomes an odd-lot employee when an injury makes 
 
            the worker incapable of obtaining employment in any 
 
            well-known branch of the labor market.  An odd-lot worker is 
 
            thus totally disabled if the only services the worker can 
 
            perform are so limited in quality, dependability, or 
 
            quantity that a reasonably stable market for them does not 
 
            exist.  In Hainey v. Protein Blender, 445 N.W.2d 398, 400 
 
            (Iowa App. 1989), the Court of Appeals provided some 
 
            explanation of the Guyton decision.  Among other things, the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Court concluded that if a person has no reasonable prospect 
 
            of steady employment, that individual has no prospect of 
 
            material earning capacity.  Additionally, this standard 
 
            contemplates that the injured worker will take some 
 
            affirmative action to either find employment or take other 
 
            steps to improve the prospects for reemployment. If the 
 
            injured worker remains unemployable, even after this effort, 
 
            then an odd-lot designation can be made.  Guyton, 373 N.W.2d 
 
            at 105, Hainey, 445 N.W.2d at 400.  
 
            
 
                 Ultimately, the application of the odd-lot doctrine 
 
            involves an allocation of the burden of production of 
 
            evidence.  The Supreme Court found that the burden of 
 
            persuasion on the issue of industrial disability always 
 
            remains with the worker.  If the evidence of the degree of 
 
            obvious physical impairment coupled with other factors such 
 
            as claimant's mental capacity, education, training or age 
 
            place claimant prima facie in the odd-lot category, the 
 
            burden should be on the employer to show that some kind of 
 
            suitable work is regularly and continuously available to the 
 
            claimant.  Guyton, 373 N.W.2d at 105; Hainey, 445 N.W.2d at 
 
            400.
 
 
 
                 In this case ***** the evidence in this record clearly 
 
            demonstrates that claimant's inability to obtain employment 
 
            is attributable to the injury to his knees rather than the 
 
            injury to his shoulder.  Claimant and claimant's primary 
 
            treating physician agreed that claimant was unable to work 
 
            because of his knees and not due to his shoulder.  Moreover, 
 
            claimant has not looked for work or made any attempt to 
 
            return to a modified job with his former employer, even 
 
            though Basic had a job for claimant at the time he was 
 
            released to return to work after his shoulder surgery.  
 
            Claimant has failed to meet the requirements set forth in 
 
            Hainey as well as the threshold requirements set forth in 
 
            Guyton.  As a result, the evidence does not support a 
 
            finding that claimant is an odd-lot employee.
 
            
 
                 However, where 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., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person.  The essence 
 
            of an earning capacity inquiry then, is not how much has the 
 
            claimant been functionally impaired, but whether that 
 
            impairment, in combination with the claimant's age, 
 
            education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within the given 
 
            restrictions, if any restrictions have been imposed, have 
 
            caused a loss of earning capacity.  Olson v. Goodyear 
 
            Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich 
 
            v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); 
 
            Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial 
 
            Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, 
 
            Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 
 
            (1985). 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            formulae which can be applied and then added up to determine 
 
            the degree of industrial disability to the body as a whole.  
 
            It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christensen, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 In this instance several factors are relevant.  
 
            Claimant's relative age plays a role.  Claimant's proximity 
 
            to normal retirement age also affects his industrial 
 
            disability.  Claimant is near the end of the normal work 
 
            life.  Compared to a younger worker with the same injury, 
 
            claimant has lost less future earning capacity as a result 
 
            of his injury.  McClellan v. Midwest Biscuit Co., File No. 
 
            802020, Slip op. (Iowa Ind. Comm'r App. September 20, 1989); 
 
            Becke v. Turner-Busch, Inc., 34 Report of the Iowa 
 
            Industrial Commissioner 34 (App. 1979); Merrill v. Eaton 
 
            Corp., File No. 707565, Slip op. (Iowa Ind. Comm'r App. May 
 
            9, 1990) (Claimant's proximity to retirement age is relevant 
 
            to the determination of industrial disability, regardless of 
 
            whether claimant retires or not); Barkdoll v. American 
 
            Freight System, Inc., File Nos. 816913 and 778471, Slip op. 
 
            (Iowa Ind. Comm'r App. June 28, 1988) (Claimant's age of 59 
 
            and proximity to normal retirement age properly considered 
 
            as a factor in determination of industrial disability).  
 
            Claimant's functional impairment rating is 13 percent.  
 
            Claimant has no stated restrictions, though his doctor has 
 
            recommended that claimant do no overhead work.  Claimant has 
 
            not looked for work since he was released to return to work 
 
            in May of 1989.  Claimant did not attempt to return to work 
 
            even though Basic tried to accommodate claimant's shoulder 
 
            restrictions.  It is difficult to determine claimant's 
 
            potential for the labor market since he has not seriously 
 
            tried to work since he was released to return to work.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981); Fernandez v. Good 
 
            Samaritan Nursing Center, No. 856640, Slip op. at 15 (Iowa 
 
            Ind. Comm'r Arb. February 27,1991).  Claimant does not have 
 
            readily transferable skills which would allow him to earn a 
 
            living with the limitations to his shoulder.  Claimant has a 
 
            high school education with other specialized training that 
 
            is applicable in one industry.  Claimant's acquired skills 
 
            as a small business person make him somewhat knowledgeable 
 
            and available for light sedentary work, but he has no 
 
            familiarity with modern business equipment.  Finally, 
 
            claimant's ability to be retrained is limited by his age, 
 
            his hearing loss and his degenerative knee condition.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            18 percent industrial disability [resulting from his March 
 
            15, 1988 injury].
 
            
 
                 Claimant is also entitled to healing period benefits 
 
            since he has suffered a permanent disability.  Iowa Code 
 
            section 85.34(1) (1991).  Healing period benefits may be 
 
            characterized as that period during which there is a 
 
            reasonable expectation of improvement of a disabling 
 
            condition and ends when maximum medical improvement is 
 
            reached.  Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 
 
            60, 65 (Iowa App. 1981).  In discussing the concept of 
 
            healing period as contemplated by Iowa Code section 85.34(1) 
 
            (1991) the Kubli Court observed that recuperation refers to 
 
            that condition in which healing is complete and the extent 
 
            of the disability can be determined.  Kubli, 312 N.W.2d at 
 
            65.  The healing period generally terminates at the time the 
 
            attending physician determines that the employee has 
 
            recovered as far as possible from the effects of the injury.  
 
            Kubli, 312 N.W.2d at 65.  When a permanent rating is given, 
 
            it indicates that the physician does not expect the claimant 
 
            to improve and this conclusion meets the criteria of Iowa 
 
            Code section 85.34(1) and Thomas v. William Knudson & Sons, 
 
            Inc., 349 N.W.2d 124, 126 (Iowa Ct. App. 1984).  The finding 
 
            of a termination of healing period necessarily precludes the 
 
            discussion of a running award.  Hoskins v. Quaker Oats, 2 
 
            Iowa Industrial Commissioner Decisions, No. 1, 181, 185 
 
            (App. 1985).
 
            
 
                 Since a healing period contemplates an inability to 
 
            work, a healing period cannot start until claimant leaves 
 
            work.  This is true even if claimant is experiencing 
 
            symptoms on the job but does not leave work for a variety of 
 
            reasons.  Boyd v. Western Home, File No. 890207, Slip op. 
 
            (Iowa Ind. Comm'r App. June 26, 1991) (Claimant began 
 
            experiencing symptoms from injury on January 2, 1990 and had 
 
            surgery on March 2, 1990.  Claimant was awarded healing 
 
            period for the time from the date of the surgery to the end 
 
            of the healing period, but was denied healing period 
 
            benefits for the time period from the onset of symptoms 
 
            until surgery).  
 
            
 
                 In this instance, claimant's healing period began on 
 
            the date of his surgery, November 21, 1988 and lasted until 
 
            the date claimant was rated and released to return to work, 
 
            May 26, 1989.  The fact that Dr. McCoy delayed in writing a 
 
            letter regarding claimant's release and functional 
 
            impairment rating did not extend claimant's healing period.  
 
            Keifer v. Iowa Public Service Company, File No. 830461, 
 
            Slip op. (Iowa Ind. Comm'r Arb. June 27, 1991) (Healing 
 
            period ended when treating doctor recommended claimant seek 
 
            long term disability.  Fact that counsel obtained doctor's 
 
            report one year later did not extend healing period).
 
            
 
                 Claimant's permanent disability benefits began to 
 
            accrue on May 27, 1989.
 
            *****
 
            [The next issue to be resolved is the liability, if any, of 
 
            the Second Injury Fund.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Iowa Code section 85.64 governs Second Injury Fund 
 
            liability.  Before liability of the Fund is triggered, two 
 
            requirements must be met.  First, the employee must have 
 
            previousl           Foods, (Appeal Decision, November 26, 1991); Shirley v. 
 
            Shirley Ag Service, (Appeal Decision, March 21, 1990); 
 
            Thompson v. Marshall & Swift, Inc., (Appeal Decision, 
 
            August 28, 1988); and Cook v. Iowa Meat Processing Company, 
 
            (Appeal Decision, May 12, 1987).  Claimant's left arm is 
 
            affected.  Dr. McCoy's observations regarding the use of 
 
            claimant's left arm shows that claimant has lost the use of 
 
            that arm.  Claimant has been rated as having 13 percent 
 
            impairment of the left upper extremity.
 
            
 
            The next matter to be resolved is claimant's cumulative 
 
            industrial disability.  The factors relevant to determining 
 
            claimant's industrial disability resulting from his March 
 
            15, 1988 disability to his shoulder are relevant to this 
 
            discussion but will not be repeated here.  Other factors 
 
            relevant to determining claimant's current cumulative 
 
            industrial disability are as follows.  Claimant's prior loss 
 
            of use to his left leg was assigned a 30 percent permanent 
 
            disability.  Claimant suffers from degenerative arthritis in 
 
            both of his knees.  Claimant's impairment rating of the left 
 
            shoulder is 15 percent.  When all factors are considered, 
 
            claimant's current cumulative industrial disability is 35 
 
            percent.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Second Injury Fund liability in this case is 19 weeks of 
 
            compensation.  (500 weeks x 35%) - [(220 weeks x 30%) + (500 
 
            weeks x 18%)].]
 
            WHEREFORE, the decision of the deputy is affirmed in part 
 
            and reversed in part.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants, Basic and Wausau, shall pay to 
 
            claimant healing period benefits for the period of time 
 
            beginning on November 21, 1988, 1985 and ending on May 26, 
 
            1989 at the rate of two hundred forty-two and 64/100 dollars 
 
            ($242.64).  As these benefits have accrued, they shall be 
 
            paid in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30 (1991).
 
            
 
                 That defendants, Basic and Wausau, shall pay to 
 
            claimant permanent partial disability benefits in the amount 
 
            of eighteen percent (18%) with payment commencing on May 27, 
 
            1989 at the rate of two hundred forty-two and 64/100 dollars 
 
            ($242.64).  As these benefits have accrued, they shall be 
 
            paid in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30 (1991).
 
            
 
                 That defendants, Basic and Wausau, shall have a credit 
 
            in the amount of sixty-four and four/sevenths (64 4/7) weeks 
 
            at the rate of two hundred thirty-eight and 59/100 dollars 
 
            ($238.59) per week against any amounts owed.  
 
            That defendant, Second Injury Fund, is to pay unto claimant 
 
            nineteen (19) weeks of permanent partial disability benefits 
 
            at the rate of two hundred forty-two and 64/100 dollars 
 
            ($242.64) per week from February 16, 1991.
 
            That defendant, Second Injury Fund, shall pay weekly 
 
            benefits in a lump sum as they have all accrued.
 
            
 
                 That interest on unpaid Second Injury Fund benefits 
 
            will accrue from the date of this decision.
 
            
 
                 That defendants, Basic and Wausau, shall file claim 
 
            activity reports as required by this agency pursuant to rule 
 
            343 IAC 3.1(2).
 
            
 
                 That defendants, Basic and Wausau and Second Injury 
 
            Fund, shall pay equally the costs of this matter including 
 
            transcription of the hearing and shall reimburse claimant 
 
            for the filing fee if previously paid by claimant.
 
            Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                                 BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            6959 University Avenue
 
            Des Moines, Iowa 50311
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
           
 
            
 
            
 
            
 
                                       5-1803; 5-4100; 5-1802; 5-3203
 
                                       Filed June 30, 1993
 
                                       Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            PERRY L. NELSON,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 901096
 
            BASIC MATERIALS CORPORATION,    
 
                                                      A P P E A L
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                        
 
            WAUSAU INSURANCE COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803; 5-4100
 
            Claimant, 59-year-old heavy duty mechanic and welder in the 
 
            crush rock industry, suffered an injury to his shoulder that 
 
            resulted in a 13 percent functional impairment.  Claimant 
 
            was a high school graduate and had owned his own businesses 
 
            in the past.  Claimant had suffered a significant injury to 
 
            his left leg in 1963 that has resulted in severe 
 
            degenerative arthritis.  The evidence showed that the 
 
            degenerative arthritis prevented claimant from returning to 
 
            work rather than his shoulder injury.  Claimant not found to 
 
            be an odd-lot employee.  Claimant's industrial disability 
 
            was found to be 18 percent.
 
            
 
            5-1803
 
            Claimant's healing period began on day he had surgery even 
 
            though symptoms had manifested themselves earlier, Boyd v. 
 
            Western Home, File No. 890207 Slip op (Iowa Ind. Comm'r Arb. 
 
            June 26, 1991), and ended on the date the treating physician 
 
            gave his rating, even though the report was written four 
 
            days later.  Claimant's healing period was not extended for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            four days.
 
            
 
            5-3203
 
            
 
            Claimant's second injury was to the body as a whole (rotator 
 
            cuff).  However, the work injury resulted in loss of use of 
 
            the arm and Second Injury Fund liability was triggered.  
 
            Claimant's work injury resulted in an industrial disability 
 
            of 18 percent.  Claimant's prior loss to his leg was 30 
 
            percent.  Claimant's current cumulative industrial 
 
            disability was 35 percent and the Fund's liability was 19 
 
            weeks.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1803;5-4100;5-1802;5-3203
 
                      Filed September 9, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PERRY L. NELSON,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 901096
 
            BASIC MATERIALS CORPORATION,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            WAUSAU INSURANCE COMPANY,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803 - 5-4100
 
            Claimant, 59-year-old heavy duty mechanic and welder in the 
 
            crush rock industry, suffered an injury to his shoulder that 
 
            resulted in a 13 percent functional impairment.  Claimant 
 
            was a high school graduate and had owned his own businesses 
 
            in the past.  Claimant had suffered a significant injury to 
 
            his left leg in 1963 that has resulted in severe 
 
            degenerative arthritis.  The evidence showed that the 
 
            degenerative arthritis prevented claimant from returning to 
 
            work rather than his shoulder injury.  Claimant not found to 
 
            be an odd-lot employee.  Claimant's industrial disability 
 
            was found to be 18 percent.
 
            
 
            5-1803
 
            Claimant's healing period began on day he had surgery even 
 
            though symptoms had manifested themselves earlier, Boyd v. 
 
            Western Home, File No. 890207 Slip op (Iowa Ind. Comm'r Arb. 
 
            June 26, 1991), and ended on the date the treating physician 
 
            gave his rating, even though the report was written four 
 
            days later.  Claimant's healing period was not extended for 
 
            four days.
 
            5-3203
 
            Claimant's second injury was to the body as a whole (rotator 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cuff) and not to a member covered by the Second Injury Fund.  
 
            Fund liability was not triggered.