Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS NETTIFEE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 905117
 
                                          :
 
            NORTHWESTERN STATES PORTLAND  :      A R B I T R A T I O N
 
            CEMENT COMPANY,               :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            U S F & G,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dennis 
 
            Nettifee against Northwestern States Portland Cement Company 
 
            and its insurance carrier based upon an alleged injury of 
 
            December 17, 1988.  Nettifee seeks weekly compensation for 
 
            healing period, permanent partial disability or permanent 
 
            total disability and payment of medical expenses.  A very 
 
            substantial issue in the case is whether the condition upon 
 
            which the claim is based is the result of an injury which 
 
            arose out of and in the course of employment.
 
            
 
                 The case was heard at Mason City, Iowa on February 5 
 
            and 6, 1991.  The record in the case consists of testimony 
 
            from Dennis Nettifee, Robert Willits, Steve Falkner, Thomas 
 
            Frank, LeeAnne Christenson and Lucille O'Donnell.  The 
 
            record also contains jointly offered exhibits 1 through 43, 
 
            including exhibits 22A, 34A and 34B.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 It is found that Dennis Nettifee injured his back on 
 
            December 17, 1988 in the manner which he described at 
 
            hearing.  This finding is made despite the initial entry 
 
            made by James K. Coddington, M.D., in his notes of December 
 
            19, 1988 in which it is recorded that claimant saw him and 
 
            expressed symptoms which had their origin approximately two 
 
            months earlier.  Dr. Coddington is a credible witness, but 
 
            there is some chance, albeit small, that he made an error 
 
            when recording the history.  Claimant's version of what 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            occurred is corroborated by testimony from Robert Willits, 
 
            stating that claimant was definitely in pain when he 
 
            observed him.  The back injury is corroborated by claimant's 
 
            first aid report (exhibit 38).  It is corroborated by the 
 
            history claimant gave to the other physicians.  It is 
 
            corroborated by the evidence from David W. Beck, M.D., which 
 
            establishes that it would be unusual for someone to work 
 
            performing physical labor for any length of time with a 
 
            herniated disc of the type which the doctor observed 
 
            (exhibit 27, pages 36 and 37).  Even Dr. Coddington agreed 
 
            that claimant apparently sought medical care because the 
 
            level of his pain had worsened (exhibit 26, page 25).  At 
 
            hearing, claimant appeared credible with regard to his 
 
            description of the events of December 17, 1988.
 
            
 
                 Claimant worked approximately two days following the 
 
            injury and then sought treatment from Dr. Coddington who in 
 
            turn referred him to E. A. Crowell, M.D., for diagnostic 
 
            testing which was interpreted as showing a large ruptured 
 
            disc at the L4-5 level on the left side of claimant's spine 
 
            and a small bulge at the L5-S1 level on the right side of 
 
            his spine (exhibits 8 and 9).  Claimant was then referred to 
 
            orthopaedic surgeon David W. Beck, M.D.  After conservative 
 
            treatment failed, Dr. Beck performed an L4-5 hemilaminectomy 
 
            and discectomy on February 8, 1989.  Dr. Beck indicated that 
 
            he expected a recuperation period of approximately three 
 
            months (exhibit 11).
 
            
 
                 Claimant's leg complaints were resolved by the surgery, 
 
            but he continued to complain of back pain.  He remained in 
 
            treatment with Dr. Beck until approximately November 1, 1989 
 
            (exhibits 13-17; exhibit 27, pages 20-25).  While under 
 
            treatment from Dr. Beck, claimant underwent a work hardening 
 
            program from late March through early July, but did not 
 
            improve.
 
            
 
                 In September 1989, Lucille O'Donnell, a qualified 
 
            vocational consultant, became involved in claimant's case.  
 
            With her assistance, claimant was evaluated by orthopaedic 
 
            surgeon Gene E. Swanson, M.D.  Dr. Swanson recommended 
 
            additional physical rehabilitation and work hardening.  At 
 
            the conclusion of the program, a functional capacity 
 
            evaluation was performed which showed claimant to be capable 
 
            of occasionally carrying or lifting as much as 50 pounds and 
 
            frequently lifting up to 24 pounds.  His main limitation was 
 
            found to be in the area of bending and squatting (exhibits 
 
            18-22).  Dr. Swanson adopted those physical capabilities as 
 
            his activity restrictions (exhibit 22A).  The activity 
 
            restrictions recommended by Dr. Beck are not identical, but 
 
            are quite similar to those from Dr. Swanson (exhibit 27, 
 
            page 32).
 
            
 
                 Drs. Swanson and Beck felt that the injury of December 
 
            17, 1988 which claimant had described to them when they 
 
            received their respective medical histories was a cause of 
 
            the herniated disc (exhibits 11, 23 and 27, page 40).  Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            Swanson imposed an impairment rating of 13 percent (exhibit 
 
            21).  Dr. Beck assigned an impairment rating of 11 percent 
 
            of which he felt 2 percent was related to claimant's 
 
            preexisting back condition (exhibit 27, pages 27, 28 and 
 
            31).  The opinions on causation and impairment ratings are 
 
            not inconsistent with each other.  They are adopted as being 
 
            correct.
 
            
 
                 Claimant, at the time of hearing, was still being 
 
            carried by the employer in a status of being incapacitated.  
 
            He had been regularly sent notices of jobs upon which he 
 
            could bid, some of which fell within the restrictions which 
 
            had been recommended by Drs. Swanson and Beck.  Claimant did 
 
            not actually bid for any of the jobs.  According to Thomas 
 
            Frank, safety director for the employer, there were at least 
 
            12 jobs, for which notices were sent to claimant, that did 
 
            comply with the doctor's restrictions and that claimant's 
 
            seniority would have made him the successful bidder on 7 of 
 
            those 12 jobs, if he had chosen to make a bid.  The 
 
            testimony from Frank is found to be accurate and correct.
 
            
 
                 Despite being off work for approximately two years at 
 
            the time of hearing, claimant has not taken any meaningful 
 
            action to either return to work or obtain retraining.  His 
 
            efforts with Steve Falkner, vocational rehabilitation 
 
            counselor with the Iowa Division of Vocational 
 
            Rehabilitation Services were initiated only shortly prior to 
 
            hearing.  Claimant's bicycle shop and art work designing 
 
            silk screens for printing on shirts do not appear to be 
 
            viable career options.
 
            
 
                 As indicated by Dr. Beck, the level of claimant's 
 
            residual complaints is atypical (exhibit 27, pages 33 and 
 
            34).  The MRI scan which was conducted indicated no 
 
            recurrent disc problems and actually appeared quite good 
 
            according to the doctor (exhibit 27, pages 20-25).  Dr. 
 
            Swanson, in his reports, made comments regarding the fact 
 
            that claimant was engaged in litigation and that it would 
 
            likely be beneficial to claimant if the matter could be 
 
            settled (exhibit 21).  Vocational consultant O'Donnell 
 
            commented at hearing that claimant's motivation to resume 
 
            work was questionable and that he seemed to be holding back 
 
            as if in an attempt to obtain some type of secondary gain.
 
            
 
                 It is found that Dennis Nettifee is not motivated to 
 
            resume employment and has not made reasonable efforts to 
 
            resume employment.  To the contrary, he appears quite 
 
            comfortable with his present status.  He seems to enjoy the 
 
            freedom to travel to BMX bicycle races with his sons and to 
 
            participate in the activity of managing the local BMX race 
 
            track.
 
            
 
                 It is specifically found that claimant did achieve 
 
            maximum medical improvement approximately three months 
 
            following his surgery as indicated by Dr. Beck.  In view of 
 
            the work hardening program which claimant followed under the 
 
            direction of Dr. Beck, it is found that at the time claimant 
 

 
            
 
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            ceased the program on July 6, 1989, it was medically 
 
            indicated that further significant improvement from the 
 
            injury was not anticipated.  The remaining treatment which 
 
            has been provided to the claimant is not found to have 
 
            improved his condition substantially.  To the contrary, 
 
            claimant has failed to prove, by a preponderance of the 
 
            evidence, that the residual complaints which led to all that 
 
            additional treatment were bona fide and of the degree of 
 
            severity which he described to the physicians.  The evidence 
 
            fails to show that claimant was actually incapacitated from 
 
            working at any time subsequent to July 6, 1989.
 
            
 
                 Dennis Nettifee is a high school graduate with 
 
            approximately two years of college.  He appeared to be of at 
 
            least average intelligence when he was observed at hearing.  
 
            His intellectual and physical capacities would permit him to 
 
            obtain employment if he were to make reasonable efforts.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 17, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Despite the conflicting evidence, it is found that the 
 
            claimant has proven, by a preponderance of the evidence, 
 
            that he injured his back on December 17, 1988 in the manner 
 
            which he described at hearing.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            17, 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).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  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).
 
            
 
                 Since the facts have been found to support claimant's 
 
            version of the manner in which the injury occurred, the 
 
            history relied upon by Drs. Beck and Swanson is reasonably 
 
            accurate.  Their assessments of causal connection are 
 
            adopted as being correct.  It is therefore concluded that 
 
            the December 17, 1988 injury is a proximate cause of the 
 
            residual disability which afflicts Dennis Nettifee regarding 
 
            his low back.
 
            
 
                 Claimant is entitled to recover healing period 
 
            compensation until the earlier of the three events set forth 
 
            in section 85.34(1) of The Code.  Since he has not made any 
 
            actual return to substantial work, his healing period is 
 
            terminated by the point at which it is medically indicated 
 
            that further significant improvement from the injury was not 
 
            anticipated.  Based primarily upon the evidence from Dr. 
 
            Beck and the claimant's inability to prove the severity of 
 
            his continuing symptoms, it is determined that claimant's 
 
            entitlement to healing period compensation ended July 6, 
 
            1989 when the first work hardening program was terminated.  
 
            Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 
 
            (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa App. 1981).  His entitlement to healing 
 
            period compensation is therefore 27 and 2/7 weeks.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 

 
            
 
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            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 It is determined that this claimant's lack of 
 
            employment and lack of actual earnings is not an accurate 
 
            indicator of his earning capacity.  As established by Tom 
 
            Frank, he could have resumed employment, consistent with the 
 
            release issued by Dr. Swanson and the activity restrictions 
 
            recommended by Dr. Beck.  He chose to make no attempt to do 
 
            so, however.  His lack of employment is a result of his lack 
 
            of motivation to seek employment.  If he had attempted to 
 
            bid the seven jobs which his seniority would have acquired 
 
            for him, he would likely be employed and earning an amount 
 
            comparable to what he earned at the time of injury with 
 
            Northwestern States Portland Cement Company.  His failure to 
 
            remain employed is not a result of any adverse action taken 
 
            by the employer.
 
            
 
                 An injured employee has a duty to use reasonable means 
 
            to effect as speedy and complete a recovery from his 
 
            injuries as may be reasonably accomplished under all the 
 
            existing circumstances.  If he fails to do so, he is not 
 
            entitled to recover for the portion of his disability, or 
 
            loss of earning capacity, which he could have avoided 
 
            through reasonable efforts.  The record in this case clearly 
 
            shows that Dennis Nettifee has failed to take reasonable 
 
            efforts to preserve his earning capacity.  He did not bid on 
 
            suitable jobs with the employer and did not seriously pursue 
 
            any other type of work or training to qualify for work.  His 
 
            recovery is therefore determined based upon what his status 
 
            would be if he had made reasonable efforts.  Knauss v. City 
 
            of Des Moines, 357 N.W.2d 573 (Iowa 1984); Vorthman v. Keith 
 
            E. Myers Enterprises, 296 N.W.2d 772, 14 A.L.R.4th 1085 
 
            (Iowa 1980); Stufflebeam v. City of Fort Dodge, 233 Iowa 
 
            438, 9 N.W.2d 281 (1943); Johnson v. Tri-City Fabricating & 
 
            Welding Co., Thirty-third Biennial Report of the Industrial 
 
            Commissioner 179 (App. Decn. 1977).
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Dennis Nettifee 
 
            sustained a 20 percent permanent partial disability as a 
 
            result of the December 17, 1988 injury.  This entitles 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant to recover 100 weeks of compensation payable 
 
            commencing July 7, 1989.
 
            
 
                 The record does not contain a precise itemization of 
 
            claimant's medical expenses.  It is in the record, however, 
 
            that he paid $1,525.00 towards his medical bills with his 
 
            own funds and that the employer is entitled to credit in the 
 
            amount of $16,304.32 for amounts paid by the employer's 
 
            group medical insurance carrier.  Since the employer has 
 
            been determined to be liable for claimant's injury, it is 
 
            entitled to the credit as stipulated.  Defendants are also 
 
            required to reimburse claimant for the expenses which he 
 
            individually paid as set forth in the attachment to the 
 
            prehearing report in the amount of $1,525.00.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Dennis 
 
            Nettifee twenty-seven and two-sevenths (27 2/7) weeks of 
 
            compensation for healing period payable commencing December 
 
            28, 1988 at the stipulated rate of two hundred sixty-four 
 
            and 54/100 dollars ($264.54).
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dennis 
 
            Nettifee one hundred (100) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of two 
 
            hundred sixty-four and 54/100 dollars ($264.54) per week 
 
            payable commencing July 7, 1989.
 
            
 
                 IT IS FURTHER ORDERED that all past due accrued amounts 
 
            shall be paid in a lump sum together with interest pursuant 
 
            to Iowa Code section 85.30 computed from the date each 
 
            payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            medical expenses.  Defendants shall pay any unpaid balance 
 
            of the expenses and shall refund to claimant the total sum 
 
            of one thousand five hundred twenty-five and 00/100 dollars 
 
            ($1,525.00) which he expended from his own funds.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
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            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Richard R. Winga
 
            Attorney at Law
 
            300 American Federal Building
 
            P.O. Box 1567
 
            Mason City, Iowa  50401
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1402.20; 1402.30; 1802
 
                           1803
 
                           Filed May 7, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DENNIS NETTIFEE,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 905117
 
                      :
 
            NORTHWESTERN STATES PORTLAND  :      A R B I T R A T I O N
 
            CEMENT COMPANY,     :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            U S F & G,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1402.20; 1402.30
 
            In the face of conflicting evidence, in particular an 
 
            inconsistent initial medical history, claimant was found to 
 
            have been injured in the manner he described at hearing.  
 
            His testimony was corroborated by several other sources of 
 
            evidence.
 
            
 
            1802
 
            Claimant was not motivated to resume work.  He failed to 
 
            even attempt to bid for jobs with the employer which were 
 
            within his physical capabilities and would have largely 
 
            eliminated any actual loss of earnings.  His complaints were 
 
            out of proportion to the objective findings made by his 
 
            physicians.  He seemed quite content with his status of not 
 
            being employed as it allowed him time to engage in 
 
            hobby-type activities with his children.  It was held that 
 
            the healing period ended when his first session of work 
 
            hardening therapy was discontinued, a date approximately 
 
            five months following the date of surgery, despite the fact 
 
            that he continued in medical treatment for more than a year 
 
            thereafter, including treatment by a different physician and 
 
            additional physical therapy.
 
            
 
            1803
 
            Permanent partial disability compensation of 20 percent was 
 
            awarded where impairment ratings were in the range of 11-13 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            percent and where activity restrictions permitted handling 
 
            weights of up to 50 pounds occasionally and approximately 35 
 
            pounds frequently.  Much weight was given to the fact that 
 
            claimant could have resumed employment with the employer, 
 
            but made no effort whatsoever to do so and that, if he had 
 
            bid, he would have been successful in obtaining jobs which 
 
            fit his activity restrictions.  The duty to mitigate was 
 
            discussed in the decision.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD P. PEEK,              :
 
                                          :
 
                 Claimant,                :       File No. 905119
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Peek, claimant, against Sheller-Globe Corporation, employer 
 
            as defendant.
 
            
 
                 Claimant alleges that he sustained a compensable injury 
 
            to his back on March 2, 1987.
 
            
 
                 The case was heard at Cedar Rapids, Iowa on April 24, 
 
            1991 and was considered fully submitted upon conclusion of 
 
            the hearing.  Leave was granted so that the parties could 
 
            file briefs.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of claimant, Rick Innis, Fred Shimon, Karen Stromer, and 
 
            Alice Kasper; claimant's exhibits 1-4; and, defendant's 
 
            exhibits A-D.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, the following issues were presented 
 
            for resolution:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial or permanent 
 
            total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27; 
 
            
 
                 5.  Whether defendant is entitled to credit as provided 
 
            for under Iowa Code section 85.38(2); and,
 
            
 
                 6.  Claimant's workers' compensation rate.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 It is also noted that defendant raised the affirmative 
 
            defense of lack of notice as governed by Iowa Code section 
 
            85.23.  Although defendant also raised the statute of 
 
            limitations defense under Iowa Code section 85.26, this was 
 
            not listed as a issue on the hearing assignment order signed 
 
            and filed January 24, 1991.  As a result, the undersigned is 
 
            unable to address this issue.  See, Joseph Presswood v. Iowa 
 
            Beef Processors, (Appeal Decision Filed November 14, 1986).
 
            
 
                 Even if this affirmative defense could be addressed, it 
 
            would fail.  Claimant has alleged an injury date of March 2, 
 
            1987.  His petition was filed March 1, 1989, and falls 
 
            within the applicable two-year statute of limitations, as 
 
            provided for under Iowa Code section 85.26.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence, finds the following facts:
 
            
 
                 Richard Peek, claimant, was born on December 2, 1934.  
 
            At the time of the hearing, he was 56 years of age.  He 
 
            attended a vocational high school for two years.
 
            
 
                 Claimant worked at several odd jobs for several years, 
 
            and then joined the Army.  Two years later, he received an 
 
            honorable discharge, with training as a wheel vehicle 
 
            mechanic.  
 
            
 
                 When he returned from the Army, claimant went into 
 
            business for himself for twelve years as a commercial 
 
            freight hauler.
 
            
 
                 In 1969, claimant joined General Electric and worked as 
 
            a coil winder and gauger in the factory.
 
            
 
                 After three years, claimant worked for several other 
 
            businesses before joining defendant Sheller-Globe, where he 
 
            has worked since 1978.  His primary duties has been as a 
 
            salvage operator, although he periodically helped workers 
 
            with other types of jobs.
 
            
 
                 In 1983, claimant sustained a work-related injury and 
 
            was paid compensation benefits.
 
            
 
                 On March 2, 1987, claimant testified that he was 
 
            working temporary services in the roto cast area.  He 
 
            described this assignment as collecting scrap, putting it in 
 
            a tub, placing the tub on a low lift, and hauling it to be 
 
            baled.  As he lifted a particular tub, he felt pain in his 
 
            back.  He kept working, and at the end of the day told the 
 
            company nurse, Alice Kasper, about the incident.
 
            
 
                 Claimant returned to work the following day, was not 
 
            getting any better, and was referred to C. A. Skaugstad, 
 
            M.D., and Susan Goodner, M.D., both of whom are company 
 
            doctors.  The notes indicate that claimant complained of 
 
            increasing difficulty with low back pain which radiated to 
 
            the right hip.  Upon examination, he demonstrated decreased 
 
            range of motion and tenderness over the L3, L4, and L5 areas 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and into the right sciatic notch.  Straight leg raising 
 
            tests were negative, and the neuromuscular exam of the lower 
 
            extremities was unremarkable.  Claimant was assessed as 
 
            having a low back strain with sciatica.  He was taken off of 
 
            work for one day, with a return to work on March 5, 1987.  
 
            He was to avoid lifting and twisting activities.  He was 
 
            given Motrin and Flexeril.  (Claimant Exhibit 2-(2), page 
 
            1).
 
            
 
                 On May 6, 1988, claimant took a leave of absence at 
 
            work for eye surgery, which is unrelated to this action.  He 
 
            was released to return to work from the eye surgery on June 
 
            6, 1988.       (Cl. Ex. 3-(2)).
 
            
 
                 On May 18, 1988, claimant sought treatment from D. G. 
 
            Sattler, M.D.  He complained of "sciatic-type" pain, and he 
 
            was referred to another physician, Dr. Durhee.  (Cl. Ex. 
 
            2-(3)).
 
            
 
                 However, claimant did not seek medical treatment from 
 
            Dr. Durhee, but instead went to James Worrell, M.D., on June 
 
            1, 1988.  His notes indicate the following:
 
            
 
                    Mr. Peek found his way over to my office today.  
 
                 I had seen him back in 1984 when he had severe 
 
                 back and left leg pain.  At that time myelography 
 
                 and bone scanning were all negative and he seemed 
 
                 to do better.  A couple of months ago he again 
 
                 rather spontaneously developed pain in the lower 
 
                 lumbar area out into the left hip down the leg 
 
                 into the shin. . . . He recalls no specific trauma 
 
                 or strain.
 
            
 
            (Cl. Ex. 2-(4)).
 
            
 
                 Claimant was taken off of work, and began a physical 
 
            therapy program at Iowa City Physical Therapy Services.  
 
            (Cl. Ex. 2-(5))  Claimant returned to Dr. Worrell on June 
 
            22, 1988 with recurrent radicular pain down the left leg.  
 
            An EMG was performed, which suggested left L5 radiculitis.  
 
            He continued off of work, and continued physical therapy.  
 
            (Cl. Ex. 2-(6)) .
 
            
 
                 Claimant returned to Dr. Worrell on July 12, 1988.  He 
 
            was admitted to Mercy Hospital in Iowa City, Iowa for a 
 
            myelogram and CT scan.  The notes indicate that several 
 
            years prior to his admittance, claimant had undergone 
 
            another myelogram which was normal.  The notes further state 
 
            that, "[h]e had gotten along reasonably well and I had not 
 
            seen him again until June 1 [1988].  About a month or so 
 
            before that he developed rather severe pain in the left back 
 
            and left hip, down the left leg.  No specific new trauma."  
 
            Upon examination, claimant displayed objective findings of 
 
            decreased pain and touch perception over the left great toe 
 
            and up the calf.  Straight leg raising tests were painful on 
 
            the left side, and bending was limited.  (Cl. Ex. 2-(7)).
 
            
 
                 The results of the myelogram showed no evidence of a 
 
            herniated disc at the L5-S1 level.  It did indicate mild 
 
            bulging. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The tests also showed no evidence of a herniated disc 
 
            or spinal stenosis at the L4-5 level.  Likewise, there was 
 
            no evidence of a herniated disc or specific spinal stenosis 
 
            at the L3-4 level.  The overall impression was one of no 
 
            significant findings.  (Cl. Ex. 2-(8)).  
 
            
 
                 Due to continuing problems, claimant underwent an 
 
            epidural steroid injection at the L4-5 level on August 3, 
 
            1988, which was performed by R. Beckman, M.D.  He noted that 
 
            although claimant had an initial back injury approximately 
 
            four years ago, he was treated conservatively and eventually 
 
            was able to resume working in normal activities.  He noted 
 
            that claimant had been doing fairly well but began to have 
 
            problems three months ago.  (Cl. Ex. 2-(9)).
 
            
 
                 Claimant also underwent a lumbar MRI and CT scan.  He 
 
            was treated with conservative methods until December 5, 
 
            1988, when a lateral disc herniation at the L4-5 was 
 
            diagnosed.  (Cl. Ex. 2-(10); 2-(11); 2-(12); and, 2-(13)).
 
            
 
                 Claimant was referred to Edward Dykstra, M.D., James 
 
            Puhl, M.D., and Edward Law, M.D.  Upon determination of left 
 
            lateral disc herniation, claimant was scheduled for surgery 
 
            and underwent the same on January 13, 1989.  (Cl. Ex. 
 
            2-(17); 2-(19)).  Claimant was discharged on January 15, 
 
            1989.  (Cl. Ex. 2-(19)).
 
            
 
                 Claimant embarked on a period of recuperation which 
 
            included physical therapy from January of 1989 through 
 
            November 14, 1989.  At that point, Dr. Law released claimant 
 
            to return to work, and imposed a 10 percent permanent 
 
            partial impairment rating based on claimant's current 
 
            condition.  (Cl. Ex. 2-(20)-(36)).  Specifically, Dr. Law's 
 
            rating was based on an eight percent permanent partial 
 
            impairment rating for the surgically treated disc with some 
 
            residual symptoms, and two percent impairment for slight 
 
            loss of side bending.  (Cl. Ex. 2-(37)).
 
            
 
                 Claimant returned to work, and has not sought 
 
            consultations with any physicians since May of 1990, his 
 
            last scheduled examination.  And, he has not missed work due 
 
            to his back since his release of October 9, 1989.  At the 
 
            time of the hearing, claimant had successfully bid into a 
 
            position in the roto-cast department.  He has encountered no 
 
            difficulties in performing the job. 
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury on March 2, 1987 which arose out of and 
 
            in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 2, 1987 
 
            which arose out of and in the course of his employment. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. 
 
            
 
                 Claimant testified that he notified the company nurse, 
 
            Alice Kasper, that he hurt his back while lifting vinyl 
 
            scraps and placing them in a tub.  Claimant described his 
 
            duties as consisting of some heavy lifting, as well as 
 
            bending, stooping, and carrying tubs of scrap.  Alice Kasper 
 
            also testified at the hearing, and remembered that claimant 
 
            requested medical treatment in March of 1987. 
 
            
 
                 As a result, it is found that it is uncontroverted that 
 
            claimant received a injury which arose out of and in the 
 
            course of his employment.
 
            
 
                 Defendant has raised the affirmative defense of lack of 
 
            notice as governed by Iowa Code section 85.23.  This portion 
 
            of the Code provides, in pertinent part:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, . . . no compensation shall be allowed.
 
            
 
                 The failure of the employee to provide the employer 
 
            with notice of the injury 90 days from the occurrence of the 
 
            injury is an affirmative defense.  The employer must prove 
 
            by a preponderance of the evidence that the employer did not 
 
            provide adequate notice.  See, Mefferd v. Ed Miller & Sons, 
 
            Inc., 33 Biennial Rep., Iowa Indus. Comm'r 191 (Appeal Dec. 
 
            1977).
 
            
 
                 The defendant has failed to establish the notice 
 
            defense under section 85.23.  The company nurse was aware of 
 
            the on-the-job injury, and directed claimant to the company 
 
            physician.  The employer had sufficient information to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            investigate the incident, and the nurse's knowledge is 
 
            sufficient, as provided under Robinson v. Department of 
 
            Transportation, 296 N.W.2d 809 (Iowa 1980), to constitute 
 
            actual notice.
 
            
 
                 The next issue to be resolved is whether there is a 
 
            causal relationship between the injury of March 2, 1987 and 
 
            claimant's current disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 2, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 The outcome of the case depends upon claimant's ability 
 
            to prove that his work-related injury in March of 1987 was 
 
            serious enough so as to require surgery, which occurred in 
 
            January of 1989.  In fact, there was more than one year 
 
            lapse between claimant's injury and concerted medical 
 
            treatment.  While claimant testified that since the March 2, 
 
            1987 incident his back became progressively worse, there is 
 
            no medical documentation to substantiate his position.  
 
            Likewise, the company nurse indicated that claimant did not 
 
            continue to seek medical guidance from her.
 
            
 
                 Julie Strommer was the claimant's group leader in 1987 
 
            and 1988.  She testified that she had daily contact with the 
 
            claimant and that he made no mention of difficulty in 
 
            performing his job duties because of an injury on the job.  
 
            Likewise, Fred Shimon, the safety director at the plant, was 
 
            unaware of claimant's work injury of March 2, 1987.  He, 
 
            too, had frequent contact with the claimant.
 
            
 
                 Physicians who were involved in the case have formed 
 
            various opinions regarding the cause of claimant's back 
 
            problems and subsequent surgery.  For example, Dr. Worrell 
 
            stated the following on January 17, 1989:
 
            
 
                 I have claimed that Mr. Peek's current problem is 
 
                 still related to his prior injury of 1984.  It was 
 
                 simply an exacerbation of his preexisting problem.
 
            
 
            (Cl. Ex. 2-(18)).
 
            
 
                 However, Dr. Worrell added the following clarification 
 
            on January 26, 1989:
 
            
 
                 I agree that his back problem had done well until 
 
                 1987 and I think this was a re-injury of a 
 
                 preexisting, at the time, asymptomatic problem.  
 
                 Hopefully this will clarify the situation.
 
            
 
            (Cl. Ex. 2-(22)).
 
            
 
                 However, Dr. Law made the following assessment on June 
 
            14, 1990:
 
            
 
                 The patient was injured at work in December, 1983 
 
                 at Sheller Globe.  He had some left leg pain which 
 
                 was dull.  Then after prolonged standing he noted 
 
                 some tingling and numbness in the left leg in the 
 
                 summer of 1988.
 
            
 
            (Cl. Ex. 2-(37)).
 
            
 
                 Finally, William J. Robb, M.D., evaluated claimant on 
 
            August 27, 1990:
 
            
 
                 I would agree with Dr. Law that the incident 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 precipitating the need for lumbar laminectomy was 
 
                 the injury of December 16 which the patient states 
 
                 is 1984 although records would indicate this 
 
                 injury was on December 16, 1983.
 
            
 
            (Cl. Ex. 2-(38)).
 
            
 
                 Dr. Robb was also deposed for the case, although his 
 
            testimony does not unequivocally attribute claimant's 
 
            surgery to any one specific episode.  (Cl. Ex. 2-(39)).
 
            
 
                 In reaching a conclusion, the undersigned must take 
 
            into account all of the evidence presented with respect to 
 
            the causally relationship between claimant's March 2, 1987 
 
            injury and his present disability.  There are several 
 
            instances in the record when claimant did not even mention 
 
            the March 2, 1987 episode during the history taken by the 
 
            medical practitioner.  Likewise, the physician's opinions 
 
            are certainly equivocal.  Additionally, the facts indicate 
 
            that claimant was not treated on a regular basis for any 
 
            type of back pain for more than one year after the March 2, 
 
            1987 accident.  Dr. Law's opinion carries the greatest 
 
            amount of weight, as he performed the surgery and monitored 
 
            claimant's care after the herniated disc was diagnosed.  Dr. 
 
            Law, as well as Dr. Robb, felt that claimant's need for the 
 
            surgery was related to the 1983 incident, which is not the 
 
            injury date under consideration in this case.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Additionally, there is evidence that claimant engaged 
 
            in manual labor-type activities outside of his employment.  
 
            These activities included chopping and selling firewood and 
 
            building fences.
 
            
 
                 As a result, it is concluded that claimant's disability 
 
            is not causally related to the March 2, 1987 work-related 
 
            accident.  The March 2, 1987 produced a temporary 
 
            aggravation of a preexisting condition.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendant shall pay the costs of this proceeding.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Patrick C Peters
 
            Attorney at Law
 
            330 E Court Street
 
            Iowa City Iowa 52240
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed July 26, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICHARD P. PEEK,    :
 
                      :
 
                 Claimant, :      File No. 905119
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            SHELLER-GLOBE CORPORATION,    :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant sustained a temporary aggravation of a preexisting 
 
            back injury which resulted in one day off of work.
 
            Claimant returned to work and did not seek medical treatment 
 
            for the next one and one/half years.  While off of work for 
 
            unrelated surgery, he noticed back pain, and eventually 
 
            underwent a lumbar laminectomy.
 
            The greater weight of the evidence showed that claimant's 
 
            condition was not caused by the injury sustained at work.  
 
            Claimant was involved in numerous manual labor duties 
 
            outside of his employment.  There was no evidence to show 
 
            that claimant sustained anything more than a temporary 
 
            aggravation of a preexisting condition.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT A. SLIFER, JR.,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 905122
 
            MONFORT PORK,                 :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CITY INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Robert A. Slifer, Jr., against his employer, 
 
            Monfort Pork, and City Insurance Company, insurance carrier, 
 
            defendants, as a result of an alleged cumulative injury 
 
            which forced claimant to discontinue working on December 1, 
 
            1988.  This matter came on for a hearing before the 
 
            undersigned deputy industrial commissioner at Des Moines, 
 
            Iowa on November 19, 1990.  A first report of injury was 
 
            filed December 1, 1988.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant; claimant's exhibits 1 through 10; and, 
 
            defendants' exhibits 1 through 28.  Official notice was 
 
            taken of Agency File No. 814202, currently on appeal.
 
            
 
                                      issues
 
            
 
                 According to the hearing assignment order, the 
 
            following issues are presented for resolution:
 
            
 
                 1.  Whether claimant suffered an injury which arose out 
 
            and in the course of his employment.
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability.
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability benefits, healing period benefits, temporary 
 
            partial disability benefits or total disability benefits.
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code secton 85.27.
 
            
 
                 5.  Claimant's workers' compensation rate.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 6.  Whether defendants is entitled to credit for 
 
            benefits paid pursuant to Iowa Code section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 Claimant was born on September 8, 1953.  He graduated 
 
            from high school in 1972, but has not obtained any further 
 
            education.
 
            
 
                 In 1974, claimant began working for Swifts (now Monfort 
 
            Pork) in Marshalltown, Iowa.  For the next 11 years, 
 
            claimant held numerous positions with the company.  All of 
 
            the positions required repetitive stooping, bending and 
 
            lifting.
 
            
 
                 In 1985, claimant sustained a back injury and was 
 
            treated by Thomas Carlstrom, M.D.  His injury resulted in an 
 
            arbitration award of 25 percent industrial disability.  (The 
 
            award is on appeal).  Claimant was off work until 1986, and 
 
            then began a job trimming snouts with a Whizard knife.  
 
            Claimant described this position as easier than prior 
 
            positions with the company, and the job was within the 
 
            medical restrictions placed upon him due to the 1985 back 
 
            injury.  These restrictions included no lifting over 40 
 
            pounds and no repetitive bending, lifting or stooping.  It 
 
            was also recommended that claimant have a rubber mat to 
 
            stand on, but this was not provided.
 
            
 
                 In late October, early November of 1988, claimant was 
 
            placed in a different position, called a "cheeking" job.  In 
 
            this position, he used a sharp edge knife to cut the cheeks 
 
            out of hog heads.  Claimant described this work as harder 
 
            than the snout trimming job.
 
            
 
                 In addition to his duties on the cheeking job, claimant 
 
            took on additional responsibilities by coming in early and 
 
            setting up the room by placing metal shields and fiberglass 
 
            cutting boards into their proper positions for the workers.  
 
            He also placed metal tubs and buckets at the appropriate 
 
            places.  These responsibilities took approximately 20 
 
            minutes per day.  Claimant had been preparing the production 
 
            room for approximately one month prior to the alleged injury 
 
            date of December 1, 1988.
 
            
 
                 On December 1, 1988, while claimant was preparing 
 
            breakfast at home, he sneezed or coughed "real hard" and 
 
            immediately felt pain in his lower back, left leg and foot.  
 
            He reported to work and worked approximately one-half hour.  
 
            The pain became worse, and claimant proceeded to go see the 
 
            nurse, who referred him to the company doctor, Darrell A. 
 
            Jebsen, M.D.  Dr. Jebsen's records, dated December 2, 1988, 
 
            indicate that: "[T]he pt. maintains that he had disc surgery 
 
            at 2 different levels at the time of his operation 2 yeras 
 
            [sic] ago.  He has evid. been on some type of back 
 
            disability since but has had no major probs. until this 
 
            acute flare beginning yesterday."  Dr. Jebsen referred 
 
            claimant to the Marshalltown Medical and Surgical Center, 
 
            where low-back x-rays were performed.  The reports indicate 
 
            that the x-rays were essentially unremarkable.  (Defendants' 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Exhibit 5, Page 26A).  
 
            
 
                 Claimant was taken off work on December 2, 1988 and 
 
            sought treatment from Mark P. Brodersen, M.D., who diagnosed 
 
            acute L-5 radiculopathy.  He referred claimant to Dr. 
 
            Carlstrom, who performed surgery on January 5, 1989.  
 
            Claimant was kept off work from December 2, 1988 through 
 
            July 6, 1989.  Once released to work, claimant returned to 
 
            his snout trimming job at Monfort Pork.  Currently, 
 
            claimant's base pay is higher than his base pay prior to the 
 
            injury.  
 
            
 
                         analysis and conclusions of law
 
            
 
                 The dispositive issue to be decided is whether claimant 
 
            suffered an injury which arose out of and in the course of 
 
            his employment with Monfort Pork.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 1, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 Claimant's argument revolves around the job duties he 
 
            had undertaken during the month of November 1988.  In 
 
            addition to his snout trimming job, claimant had also been 
 
            arriving approximately twenty minutes prior to his shift in 
 
            order to prepare the room for the production workers.
 
            
 
                 Claimant's additional job duties of preparing the 
 
            production area for the line workers required him to perform 
 
            repetitive bending and lifting of up to 40 lbs.  His job as 
 
            a snout trimmer required some bending and lifting 
 
            (Transcript, pp. 46-47; def. ex. from case #814202 on 
 
            appeal).  Claimant testified he had constant back pain which 
 
            continued when he changed to the cheeking job.  Yet claimant 
 
            continued to work on a full-time basis.
 
            
 
                 Claimant also told Dr. Carlstrom that his back had been 
 
            hurting prior to the December 1, 1988 incident.  (Carlstrom 
 
            Deposition, pp. 4 & 7).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 However, claimant did not relay to Dr. Brodersen or Dr. 
 
            Jebsen (the doctors he saw during the first several weeks 
 
            after the injury) that he had had prior, constant back pain 
 
            in late October and November of 1988  (Def. Ex. 3).
 
            
 
                 Claimant has alleged a cumulative injury.  A cumulative 
 
            injury is one where the disability develops over a period of 
 
            time, and the compensable injury itself occurs at a later 
 
            time.  McKeever Custom Cabinets v Smith, 379 N.W.2d 368, 373 
 
            (Iowa 1985).  The injury occurs when, because of pain or 
 
            physical inability, the claimant can no longer work.  Id. at 
 
            374.
 
            
 
                 In the instant case, it has not been shown that 
 
            claimant's disability developed over a period of time.  He 
 
            performed his duties in the snout trimming job without 
 
            incident.  And, it has not been shown that claimant 
 
            experienced back pain in performing the cheeking job, or in 
 
            performing his additional job functions of preparing the 
 
            production room.  And, although claimant stated he had 
 
            continual back pain, the history given to Dr. Carlstrom 
 
            indicates that claimant "had been working for the past 20 
 
            months without significant difficulty."  (Carlstrom 
 
            Deposition, Ex. C).
 
            
 
                 In evaluating the evidence presented, there are too 
 
            many variables in the case to support a finding that his 
 
            injury arose out of and in the course of his employment.  
 
            Although Dr. Carlstrom connected the injury to claimant's 
 
            work, even he could not stand firm on the opinion after 
 
            reviewing records from Dr. Brodersen and Dr. Jepsen, which 
 
            indicate that claimant did not have any complaints of back 
 
            pain prior to the sneezing/coughing incident which directly 
 
            precipitated the subsequent surgery.
 
            
 
                 The undersigned finds that claimant has not sustained 
 
            his burden of proving by a preponderance that his injury 
 
            arose out of and in the course of his employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Patrick L Wilson
 
            Attorney at Law
 
            208 Masonic Temple
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Marshalltown Iowa 50158
 
            
 
            Mr Robert E McKinney
 
            Attorney at Law
 
            480 6th Street
 
            PO Box 209
 
            Waukee Iowa 50263
 
            
 
            Mr Michael R Hoffmann
 
            Attorney at Law
 
            Breakwater Building
 
            3708 75th Street
 
            Des Moines Iowa 50322
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1402.30
 
                      Filed February 19, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT A SLIFER, JR.,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 905122
 
            MONFORT PORK,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            CITY INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1402.30
 
            Claimant failed to establish that his back condition arose 
 
            out of and in the course of his employment.  Claimant was at 
 
            home fixing breakfast when he sneezed or coughed.  He felt 
 
            pain, and eventually underwent back surgery.
 
            The evidence showed that claimant had not complained of back 
 
            pain prior to the incident, nor did he seek medical 
 
            treatment for any back pain prior to the sneezing incident 
 
            at home.  Benefits denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES W. BEATTIE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos.  782228 & 905131
 
            FIRESTONE TIRE AND RUBBER CO.,:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petitions 
 
            of claimant, Charles Beattie, against his employer, 
 
            Firestone Tire and Rubber Co., and its insurance carrier, 
 
            Cigna, defendants.  The cases were heard on June 12, 1990, 
 
            in Des Moines, Iowa, at the office of the industrial 
 
            commissioner.  The record consists of the testimony of 
 
            claimant and the testimony of Clark Borland, Jim Allpress 
 
            and Richard Harter.  Additionally, the record consists of 
 
            joint exhibits A through R and claimant's exhibit 1.
 
            
 
                 With respect to file number 782228, the matter had been 
 
            dismissed by claimant during the proceedings.
 
            
 
                                      issue
 
            
 
                 The issue to be determined is the nature and extent of 
 
            claimant's permanent partial disability, if any.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 40 years old on the date of the hearing.  
 
            He was married with two children.  In July of 1971 claimant 
 
            commenced his employment with defendant-employer.  He had 
 
            held a variety of positions.  At the time of his injury 
 
            claimant was working in the heavy duty department.  He built 
 
            all sizes of tires, but primarily assembled rear tractor 
 
            tires.
 
            
 
                 Claimant testified that he developed a problem with his 
 
            right shoulder on January 5, 1987.  He sought medical 
 
            attention in the nurse's office.  He was then referred to an 
 
            orthopedic surgeon, William R. Boulden, M.D.  In March of 
 
            1987 claimant had an impingement syndrome release on the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            right shoulder.  Subsequent to his surgery Dr. Boulden 
 
            opined:
 
            
 
                 The record indicates this patient underwent an 
 
                 impingement release back in March of 1987.  We 
 
                 will not reiterate the entire history since this 
 
                 is documented well in previous correspondence.  
 
                 The patient states that his shoulder does not feel 
 
                 any better or has not demonstrated any more 
 
                 improvement than it was prior to the surgery.  He 
 
                 continues to have pain up and across the upper 
 
                 trapezious area of the right side with the pain 
 
                 radiating into the cervical spine.  He is also 
 
                 experiencing some pain down into the right wrist 
 
                 and arm.  He has an occasional tingling over the 
 
                 last two digits of the right hand.
 
            
 
                 Active range of motion of the right shoulder shows 
 
                 forward elevation to 150 degrees, extension to 40 
 
                 degrees, abduction 140 degrees, external rotation 
 
                 is 80 degrees, and internal rotation is 40 degrees 
 
                 plus.  On the basis of the range of motion 
 
                 measurements, the patient has incurred a 3 percent 
 
                 impairment to the right upper extremity.
 
            
 
                 In view of the patient's neurologic complaints, 
 
                 specifically the tingling that is occurring over 
 
                 the last two digits, we would formally recommend a 
 
                 neurosurgeon consult simply to rule out any 
 
                 pathology in the cervical spine.
 
            
 
            (defendants' exhibit C, page 2)
 
            
 
                 Claimant, in turn, was examined by David J. Boarini, 
 
            M.D, a neurosurgeon.  The results of Dr. Boarini's 
 
            examinations revealed claimant had an unremarkable 
 
            neurological exam.  Dr. Boarini's tests did demonstrate some 
 
            tenderness over the right shoulder both anteriorly and 
 
            posteriorly.
 
            
 
                 Claimant continued to experience difficulties.  He was 
 
            sent to another orthopedic surgeon, Stephen G. Taylor, M.D.  
 
            Dr. Taylor provided a second opinion for which a second 
 
            surgical procedure was necessary.  Subsequent to the second 
 
            surgery, Dr. Taylor rendered the following opinion:
 
            
 
                 Your client, Charles Beattie, was treated in our 
 
                 office from March 1988 until he was last seen on 
 
                 March 2, 1989.  Mr. Beattie was evaluated and 
 
                 treated for a chronic right shoulder problem which 
 
                 was diagnosed as rotator cuff tendonitis and 
 
                 impingement syndrome of the right shoulder.  I 
 
                 feel this condition was caused by repetitive 
 
                 overhead use of his arms which was required in his 
 
                 work as a tire builder.  Prior to being seen by 
 
                 me, Mr. Beattie had seen Dr. Boulden and had 
 
                 undergone a surgical procedure in March 1987.
 
            
 
                 Mr. Beattie's workup included a normal shoulder 
 
                 arthrogram to rule out a rotator cuff tear.  We 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 continued with conservative treatment with 
 
                 injections and anti-inflammatory medications but 
 
                 he never improved satisfactorily.  Thus on 
 
                 November 28, 1988, a second surgical procedure or 
 
                 bursa resection and acromioplasty of the right 
 
                 shoulder was carried out.  I continued to follow 
 
                 Mr. Beattie's progress until March 2, 1989.  At 
 
                 that time he had regained nearly a full range of 
 
                 motion of the right shoulder but did continue to 
 
                 have some discomfort particularly with overhead 
 
                 use of the arms.  
 
            
 
                 At the time of his discharge, I recommended to Mr. 
 
                 Beattie that he not resume tire building or other 
 
                 similar work which would require repetitive 
 
                 lifting or overhead use of the arms.  I feel these 
 
                 activities will likely aggravate or cause a 
 
                 reoccurrence of his shoulder problems.  I also 
 
                 feel his shoulder condition and surgical 
 
                 procedures has resulted in a 5% permanent partial 
 
                 impairment of his shoulder.
 
            
 
            (defendants' exhibit A, page 2)
 
            
 
                 Claimant returned to work at defendant-employer's 
 
            establishment in January of 1989.  He has been employed as a 
 
            quality coordinator since that time.  Claimant has not been 
 
            involved with actual tire building since before his first 
 
            surgery.
 
            
 
                                conclusions of law
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitled claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
            Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 If a claimant contends he has industrial disability he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 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, 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, l985).
 
            
 
                   For example, a defendant employer's refusal to give 
 
            any sort of work to a claimant after he suffers his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            affliction may justify an award of disability.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 With respect to this case, the sole issue to address is 
 
            the type of permanent partial disability which claimant has 
 
            sustained.  Claimant alleges, "[H]e has sustained a body as 
 
            a whole injury and is entitled to have his injury evaluated 
 
            industrially."  Defendants maintain claimant has sustained a 
 
            scheduled member injury to the right upper extremity.
 
            
 
                 It has long been recognized that an injury to the 
 
            shoulder is, "an injury to the body as a whole." Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949);  Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
            Commissioner Report 281 (1982); also see Sample v. United 
 
            Parcel Service, file 888801 (filed July 25, 1990).  The 
 
            facts in the instant case warrant a holding that claimant 
 
            has sustained an injury to the body as a whole.  The 
 
            surgical incisions were made on the upper cavity.  Claimant 
 
            has been diagnosed as having an impingement syndrome.  His 
 
            injury is not confined to the right upper extremity.  
 
            Claimant testified he has pain along the right shoulder 
 
            joint, the top of his shoulder, and across the shoulder 
 
            blade.  He has inflammation in his shoulder joint, per Dr. 
 
            Boulden.  Definitely, claimant has sustained a permanent 
 
            injury to the body as a whole.  His disability is calculated 
 
            by the industrial method.
 
            
 
                 Claimant maintains there has been a loss of earning 
 
            capacity as a result of his work injury.  Claimant is 
 
            restricted from resuming tire building or other similar work 
 
            which will require repetitive lifting or overhead use of the 
 
            arms.  Claimant has returned to work, but not as a tire 
 
            builder.  Defendant-employer is commended for accommodating 
 
            claimant within his restrictions.  Claimant is now involved 
 
            in quality control, a light duty position.  It appears to be 
 
            a stable job within the corporate structure, but per the 
 
            opinion of vocational rehabilitation specialists, claimant 
 
            is confined to medium level work with no overhead work.  At 
 
            some point, claimant may be assigned a medical placement 
 
            job.  
 
            
 
                 Currently, claimant is earning the same hourly rate 
 
            which he had earned as a tire builder.  Whether claimant 
 
            will ever earn less per hour is speculative at this 
 
            juncture.  All in all, it is the determination of the 
 
            undersigned that claimant has sustained a 10 percent 
 
            permanent partial disability to the body as a whole.  His 
 
            commencement date for these benefits is January 9, 1989, the 
 
            date on which claimant returned to work.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay fifty (50) weeks of permanent 
 
            partial disability benefits to claimant at the stipulated 
 
            rate of three hundred eighty and 36/100 dollars ($380.36) 
 
            per week commencing on January 9, 1989.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Defendants are to also pay healing period benefits from 
 
            March 16, 1987 through August 9, 1987 and from November 28, 
 
            1988 through January 8, 1989, twenty-seven (27) weeks at the 
 
            stipulated rate of three hundred eighty and 36/100 dollars 
 
            ($380.36) per week.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall take credit for all benefits 
 
            previously paid to claimant.
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHELLE A. MCGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Donald G. Beattie
 
            Attorney at Law
 
            204-8th St. SE
 
            Altoona, Iowa  50009
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803
 
                      Filed February 26, 1991
 
                      Michelle A. McGovern
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLES W. BEATTIE, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      : File Nos.  782228 & 905131
 
            FIRESTONE TIRE AND RUBBER CO.,:
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant sustained a 10 percent permanent partial disability 
 
            to the body as a whole as the result of a work injury to his 
 
            shoulder.
 
            Claimant had sustained a loss of earning capacity, but had 
 
            returned to his employment at the same rate of pay, even 
 
            though he returned to a different position.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                       :
 
            CHARLES W. BEATTIE,  :
 
                       :
 
                 Claimant,  :
 
                       :      File No. 905131
 
            vs.        :
 
                       :      R E V I E W 
 
            FIRESTONE TIRE AND RUBBER CO., :
 
                       :    R E O P E N I N G 
 
                 Employer,  :
 
                       :      D E C I S I O N
 
            and        :
 
                       :
 
            CIGNA,     :
 
                       :
 
                 Insurance Carrier,   :
 
                 Defendants.     :
 
            ___________________________________________________________
 
            INTRODUCTION
 
            
 
                 This is a proceeding in review reopening brought by 
 
            Charles W. Beattie, claimant, against Firestone Tire and 
 
            Rubber Company, employer, and CIGNA, insurance carrier, for 
 
            benefits as a result of an injury that occurred on January 
 
            5, 1987.  A hearing was held in Des Moines, Iowa on February 
 
            2, 1993 and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Donald G. Beattie.  
 
            Defendants were represented by Marvin E. Duckworth.  The 
 
            record consists of the testimony of Jim Allpress, safety 
 
            engineer and workers' compensation coordinator, Lamar 
 
            Edwards, labor relations manager, Charles W. Beattie, 
 
            claimant, and joint exhibits 1 through 10.  Claimant's 
 
            attorney submitted an excellent trial brief at the time of 
 
            the hearing.  
 
            
 
                                      issues
 
            
 
                 The sole issue for determination at the time of the 
 
            hearing as presented by the parties on the prehearing 
 
            conference report, the hearing assignment order and the 
 
            hearing report was whether claimant had sustained a change 
 
            of economic condition since the arbitration proceeding which 
 
            was held on June 12, 1990.  As a result of that proceeding 
 
            an arbitration decision was filed on February 26, 1991, 
 
            which determined that claimant had sustained a 10 percent 
 
            industrial disability to the body as a whole and claimant 
 
            was awarded 50 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 At this hearing defendants conceded that claimant did 
 
            in fact sustain a change in economic condition and that 
 
            claimant was, in fact, entitled to additional industrial 
 
            disability benefits and that they were in the process of 
 
            paying claimant an additional 50 weeks of permanent partial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability benefits based upon additional 10 percent 
 
            industrial disability.  
 
            
 
                 The parties agreed at the hearing that the sole issue 
 
            for determination is how much industrial disability, if any, 
 
            that claimant is entitled to taking into consideration the 
 
            economic change of condition which has occurred.  
 
            
 
                                 findings of fact
 
            
 
                              industrial disability
 
            
 
                 It is determined that claimant has sustained an overall 
 
            industrial disability of 35 percent to the body as a whole 
 
            and is entitled to 175 weeks of permanent partial disability 
 
            benefits.  
 
            
 
                 It is further determined that defendants are entitled 
 
            to a credit for 50 weeks of permanent partial disability 
 
            benefits paid pursuant to the previous award and they are 
 
            also entitled to a credit for the amounts they have 
 
            voluntarily paid to claimant as of the time of this hearing 
 
            for the increase in industrial disability sustained because 
 
            of this change of condition.  
 
            
 
                 The previous deputy made her award based upon the 
 
            following findings:
 
            
 
                 "Claimant maintains there has been a loss of 
 
                 earning capacity as a result of his work injury.  
 
                 Claimant is restricted from resuming tire building 
 
                 or other similar work which will require 
 
                 repetitive lifting or overhead use of the arms.  
 
                 Claimant has returned to work, but not as a tire 
 
                 builder.  Defendant-employer is commended for 
 
                 accommodating claimant within his restrictions.  
 
                 Claimant is now involved in quality control, a 
 
                 light duty position.  It appears to be a stable 
 
                 job within the corporate structure, but per the 
 
                 opinion of vocational rehabilitation specialist, 
 
                 claimant is confined to medium level work with no 
 
                 overhead work.  At some point, claimant may be 
 
                 assigned a medical placement job.
 
            Currently, claimant is earning the same hourly rate which he 
 
            had earned as a tire builder.  Whether claimant will ever 
 
            earn less per hour is speculative at this juncture.  All in 
 
            all, it is the determination of the undersigned that 
 
            claimant has sustained a 10 percent permanent partial 
 
            disability to the body as a whole.  His commencement date 
 
            for these benefits is January 9, 1989, the date on which 
 
            claimant returned to work."
 
            
 
                 Subsequent to the previous award claimant was, in fact, 
 
            assigned to a medical placement job.  On June 25, 1991, 
 
            claimant was transferred from the quality control 
 
            coordinator job that he was performing at the time of the 
 
            previous hearing to a job called inventory scheduling.  The 
 
            previous deputy said that the quality control coordinator 
 
            job appeared to be stable but in reality it was not.  The 
 
            rate of pay for the quality control coordinator job was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            $20.818 per hour and the rate of pay for the inventory 
 
            scheduling job was $12.412 per hour (Ex. 7).  This 
 
            constitutes a 40 percent actual loss of earnings.
 
            
 
                 Claimant did not prove that there was a conspiracy to 
 
            maintain his pay at the same rate as a tire builder until 
 
            after the previous hearing was over and then reduce his pay 
 
            substantially after the hearing (Exs, 2, 3, 4 & 8).  As the 
 
            previous deputy pointed out, "At some point, claimant may be 
 
            assigned a medical placement job." (Decision of February 26, 
 
            1991, page 5).  This has now occurred.  Subsequent to the 
 
            hearing a labor management agreement provided that no 
 
            employee can keep the quality control coordinator job for 
 
            more than one year.  Thus, it was necessary to find other 
 
            employment for claimant within the company or to give up his 
 
            employment with the employer altogether.  
 
            
 
                 The evidence shows that the employer was very 
 
            accommodating in assisting claimant in finding a job which 
 
            he could perform (Ex. 8).  Claimant was offered a jeep 
 
            driver job, but he thought this would be too difficult for 
 
            his right shoulder condition and the employer offered him 
 
            other opportunities.  Claimant tried the carting job but 
 
            after two days of work found that he was unable to perform 
 
            this job.  The doctor agreed with claimant, and employer, 
 
            with the agreement of claimant and working with the union 
 
            representative, placed claimant in his current job of 
 
            inventory scheduling.  Thus, claimant did not prove that 
 
            these medical placement transfers, which were recognized at 
 
            the time of the previous decision, were malicious or 
 
            preconceived to reduce claimant's award at the previous 
 
            hearing.  
 
            
 
                 Nevertheless, claimant has, as a matter of fact, 
 
            sustained a 40 percent actual loss of earnings, as proved by 
 
            the employer's own records (Ex. 7; Ex. 9, p. 15).  
 
            
 
                 At the same time, claimant was not forced out into the 
 
            competitive labor market with a restriction of no repetitive 
 
            lifting or overhead use of the arms and a limitation to 
 
            medium work only.  The vocational rehabilitation specialist 
 
            said that claimant's future employment is confined to medium 
 
            level work.  These limitations would constitute a severe 
 
            loss of earning capacity for a 40-year-old employee who was 
 
            previously near the peak of his earning capacity at the time 
 
            of this injury.  As the previous deputy pointed out 
 
            defendant-employer is commended for accommodating claimant 
 
            within his restrictions.  Also, claimant maintains excellent 
 
            employee benefits with this employer which he might not find 
 
            reentering the labor market as an injured, restricted and 
 
            permanently disabled applicant for jobs in competition with 
 
            younger, healthier prospective employees.  At the same time, 
 
            if defendant-employer had not accommodated claimant his 
 
            industrial disability would have been substantially higher. 
 
            
 
                 Weighing these factors together and considering all of 
 
            the other industrial disability factors in this case it is 
 
            determined that claimant has sustained an overall industrial 
 
            disability and loss of earning capacity of 35 percent of the 
 
            body as a whole.  Even though his actual earnings loss is 40 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            percent, claimant's loss of earning capacity is reduced by 
 
            the fact that he has been accommodated by 
 
            defendant-employer.  Moreover, claimant testified at hearing 
 
            that he felt that his job was secure.  At the same time, it 
 
            was generally conceded by both parties that claimant will 
 
            never be able to perform incentive work again and that he 
 
            will never be able to rise above jobs which pay currently 
 
            $12 to $13 per hour with this employer.  There was evidence 
 
            that he might be able to perform the calendaring job which 
 
            pays $15 per hour.  Whether he met the total job 
 
            requirements and whether he had the seniority to obtain a 
 
            calendaring job was not established.  It was agreed that 
 
            claimant had not bid on a calendaring job, nor had it been 
 
            offered to him.
 
            
 
                 In conclusion it is determined that claimant is 
 
            entitled to an overall award of 175 weeks of permanent 
 
            partial disability benefits based upon an overall 35 percent 
 
            industrial disability to the body as a whole.
 
            
 
                 The previous deputy stated, "Whether claimant will ever 
 
            earn less per hour is speculative at this juncture."  The 
 
            speculation has ended at the present time and claimant is 
 
            earning 40 percent less after he was assigned to a medical 
 
            placement job when the quality control coordinator job 
 
            proved to be unstable after the previous hearing.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant has sustained the burden of proof by 
 
            preponderance of the evidence, and defendants have agreed, 
 
            that claimant did sustain a change of economic condition 
 
            since the previous hearing and award.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).  McSpadden 
 
            v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            
 
                 That claimant has sustained the burden of proof by 
 
            preponderance of the evidence that he has sustained a 35 
 
            percent industrial disability to the body as a whole and 
 
            that he is entitled to 175 weeks of permanent partial 
 
            disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That defendants are entitled to a credit for 50 weeks 
 
            of permanent partial disability benefits paid to claimant 
 
            pursuant to the previous award and in addition defendants 
 
            are entitled to so much of the additional voluntary payments 
 
            that they have made as of the date of this decision.  
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the stipulated rate of three hundred eighty and 
 
            36/100 dollars ($380.36) per week in the total amount of 
 
            sixty-six thousand five hundred sixty-three dollars 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ($66,563) commencing on January 9, 1989.
 
            
 
                 That defendants are entitled to a credit for fifty (50) 
 
            weeks of permanent partial disability benefits paid to 
 
            claimant at the stipulated rate of three hundred eighty and 
 
            36/100 dollars ($380.36) per week pursuant to the previous 
 
            award in the total amount of nineteen thousand eighteen 
 
            dollars ($19,018) and they are entitled to an additional 
 
            credit for whatever they have voluntary paid to claimant 
 
            prior to this hearing.
 
            
 
                 All accrued payments are to be paid in a lump sum.  
 
            
 
                 Interest will accrue pursuant to Iowa Code section 
 
            85.30 but only commencing with the date of this decision.  
 
            Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 
 
            (1957). 
 
            
 
                 That the costs of this proceeding are charged to 
 
            defendants pursuant to Iowa Code section 86.40 and rule 343 
 
            IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Donald Beattie
 
            Attorney at Law
 
            204 8th Street, S.E.
 
            Altoona, IA  50009
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Ave.
 
            Des Moines, IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                        2905
 
                        Filed February 9, 1993
 
                        Walter R. McManus, Jr.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                       :
 
            CHARLES W. BEATTIE,  :
 
                       :
 
                 Claimant,  :
 
                       :      File No. 905131
 
            vs.        :
 
                       :      R E V I E W 
 
            FIRESTONE TIRE AND RUBBER CO., :
 
                       :    R E O P E N I N G 
 
                 Employer,  :
 
                       :      D E C I S I O N
 
            and        :
 
                       :
 
            CIGNA,     :
 
                       :
 
                 Insurance Carrier,   :
 
                 Defendants.     :
 
            ___________________________________________________________
 
            
 
            2905
 
            Defendants conceded that claimant had sustained a change of 
 
            economic condition after the previous arbitration hearing 
 
            and even voluntarily had begun paying claimant an additional 
 
            50 weeks of industrial disability in addition to the 50 
 
            weeks that were awarded by the previous deputy.
 
            The issue was how much, if any, industrial disability should 
 
            be awarded.
 
            The previous deputy stated (1) claimant's job at the time of 
 
            that hearing was stable, (2) that claimant was subject to 
 
            medical placement and (3) his future earnings were 
 
            speculative.
 
            After the previous hearing the stable job was removed from 
 
            him pursuant to a medical placement and the speculation over 
 
            future earnings ended because employer's records 
 
            demonstrated that claimant had sustained a 40 percent loss 
 
            of actual earnings and was limited to about 40 percent loss 
 
            of earnings permanently.
 
            Claimant was awarded industrial disability of 35 percent, 
 
            less credit for what he had been paid.  Employer did 
 
            accommodate claimant.  Claimant felt his current job was 
 
            secure.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANCES WILSON,
 
         
 
              Claimant,                              File No. 905134
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         CITY OF DAVENPORT,                          D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAR 28 1990
 
         
 
         EMPLOYERS REINSURANCE CORP.,         IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Frances Wilson, against the City of Davenport, employer, and 
 
         Employers Reinsurance Corporation, insurance carrier, defendants, 
 
         to recover medical benefits only as a result of an injury 
 
         sustained on March 4, 1986.  This matter came on for hearing 
 
         before the deputy industrial commissioner in Davenport, Iowa, on 
 
         March 23, 1990.  The record consists of the testimony of the 
 
         claimant.  There are no exhibits.
 
         
 
                                      ISSUE
 
         
 
              The only issue the parties set out in the prehearing report 
 
         for resolution is whether claimant is entitled to medical 
 
         benefits under Iowa Code section 85.27, which involves only the 
 
         $1,174 bill of a Dr. Wood, a doctor of chiropractic medicine.
 
         
 
              At the beginning of the hearing, claimant's motion to 
 
         exclude respondents' witnesses and exhibits filed March 16, 1990 
 
         was sustained by the undersigned deputy except for witness Dave 
 
         Geisler.  The undersigned deputy allowed one employee of each 
 
         defendant to testify.  Dave Geisler was an employee of defendant 
 
         employer.  Paul Mehuys was not an employee of either defendant. 
 
         Geisler was not present to testify.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she has been employed as a corporal in 
 
         the police department for the City of Davenport for thirteen 
 
         years as of July 1990, working in the patrol division.  Claimant 
 
         said her work involves riding in a police car and responding to 
 
         calls. Claimant said she completed four years of high school, 
 
         attended four years at Hawkeye Tech, has a bachelors degree in 
 
         criminal justice from St. Ambrose College and is currently 
 
         working on a masters degree in criminal justice administration at 
 
         Western Illinois University.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was injured on March 4, 1986 when she answered a 
 
         call involving a burglary suspect.  Claimant testified that in 
 
         the process of responding, her car was ultimately struck 
 
         broadside by a car driven by the suspect.  She said her car was 
 
         completely turned around by the collision resulting in her radio 
 
         being knocked off.  She said she bruised her knee and injured her 
 
         back. Claimant was taken by ambulance to the hospital.  Claimant 
 
         acknowledged that Dr. J. H. Sunderbruch was the employer-chosen 
 
         doctor.  Claimant said Dr. Sunderbruch did not seem to be helping 
 
         her.  She indicated she had seen him three times and he would not 
 
         listen to her.  Claimant said she told her superior officer, a 
 
         Sergeant Howard, within two weeks of her injury that she was 
 
         going to see her own doctor, Dr. Schreck.  Claimant said she was 
 
         told by Dr. Schreck that if she was seeing a chiropractor and 
 
         getting relief, to go ahead.  Claimant emphasized Sergeant Howard 
 
         also knew of Dr. Wood.
 
         
 
              Claimant related she had prior back problems and had been 
 
         receiving treatment from Dr. Wood for years.  Claimant said she 
 
         was actually due for another monthly adjustment from Dr. Wood due 
 
         to prior problems when the March 4, 1986 injury occurred.
 
         
 
              Claimant said she also told her other two supervisory 
 
         sergeants, Yearington and Ferdenburg, that Dr. Sunderbruch was 
 
         not helping her.  Claimant emphasized these officers told her to 
 
         get the help she needed.  Claimant stated all her treatments 
 
         after March 4, 1986 were the result of her March 4, 1986 injury 
 
         from the car collision.  Claimant related she couldn't stand up 
 
         or sit for the eight hours she would normally ride in the car 
 
         wearing her gun belt and performing her duties.  Claimant 
 
         emphasized that Dr. Wood helped her and was responsible for 
 
         claimant getting back to work and helping her get better quicker.
 
         
 
              Claimant stated she thought she had the authority of 
 
         defendant employer when three supervisory or superior officers 
 
         told her to get the medical help she needed.  Claimant said that 
 
         in June or July 1986, after she understood defendant employer 
 
         contended claimant did not have authority to see Dr. Wood, she 
 
         again talked to Sergeant Ferdenburg and Yearington.  Claimant 
 
         explained they told her it was okay to see Dr. Wood and if they 
 
         needed to grieve the issue to the union, they would.  Claimant 
 
         said she and the above two officers are members of the union.
 
         
 
              Claimant acknowledged she did not talk to any administrative 
 
         personnel about Dr. Wood.  Claimant also said she did not tell 
 
         Dr. Sunderbruch that she was seeing a chiropractor.  Claimant 
 
         said her shift supervisor, Sergeant Morrissey, also was aware of 
 
         claimant's chiropractic treatments with Dr. Wood.  Claimant 
 
         acknowledged there have been past problems with the city paying 
 
         for chiropractic treatment.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.27 provides, in part:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, the employee should communicate the 
 
              basis of such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose the 
 
              employee's care at the employer's expense, provided the 
 
              employer or the employer's agent cannot be reached 
 
              immediately.
 
         
 
              The issue in this case is very limited.  Defendants contend 
 
         they should not have to pay Dr. Wood's bill for the $1,174 for 
 
         chiropractic treatment of claimant.  There is no question of 
 
         causal connection, reasonableness or necessity regarding the bill 
 
         and treatment.  Defendants contend claimant had no authority.  It 
 
         is obvious defendant employer believes the authority can only 
 
         come from some administrative personnel or the original defendant 
 
         employer-chosen doctor.  Defendants do not believe a supervisor 
 
         or superior officer of the claimant, like a police sergeant, has 
 
         any authority to give claimant an okay to see a doctor.  Claimant 
 
         repeatedly testified she had authority from three to four 
 
         officers who were over her and in a supervisory or superior 
 
         position. Claimant had prior medical experience from Dr. Wood.  
 
         He helped her in the past.  Claimant was convinced Dr. Wood's 
 
         treatment after the March 4, 1986 accident helped her get back to 
 
         her job. She felt Dr. Sunderbruch was not helping her and would 
 
         not have gotten her back to work as soon.
 
         
 
              It is clear and convincing that defendant employer did not 
 
         pay chiropractor bills.  It would be expecting too much to think 
 
         Dr. Sunderbruch, an M.D., would suggest or refer claimant to a 
 
         chiropractor.  It isn't hard to presume defendants' own doctor 
 
         probably knew defendants' position on chiropractors.  The 
 
         majority of the medical profession's (M.D.'s) attitude toward 
 
         chiropractors is generally known.
 
         
 
              The undersigned is surprised this case has come this far. 
 
         There appears to be animosity in this case, greater than should 
 
         exist, over a $1,174 chiropractor bill.  Claimant is a well 
 
         qualified and educated peace officer with good job motivation. 
 
         Defendants should foster goodwill and act reasonably to keep 
 
         officers like claimant, with the education and motivation she 
 
         has, rather than fight an employee over an issue of this kind.  
 
         Claimant is entitled to rely upon the authorization of superior 
 
         officers. The law does not say who in the chain of command must 
 
         give the authorization.  The law does not distinguish between 
 
         police officers or nonpolice officers versus administrative 
 
         personnel when the employee who is injured is from the police 
 
         department itself.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned finds that claimant had proper authority to 
 
         receive care and treatment from Dr. Wood.  Dr. Wood also helped 
 
         claimant to return to work faster than she would have if claimant 
 
         had continued solely with Dr. Sunderbruch.  Defendants are 
 
         responsible for the bill of Dr. Wood in the amount of $1,174.
 
         
 
              If defendants feel only a top administrative person can give 
 
         authority under Iowa Code section 85.27, then that issue is 
 
         between the city and the various departments, including the 
 
         police department.  The dispute in this current case should be 
 
         between the city and the police department and the authority of 
 
         their supervisor or superior officers and not involve the 
 
         claimant who has the right to rely upon the authority of her 
 
         superior and/or supervisory officers.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received authority to seek chiropractic 
 
         treatment from her fellow police officers who were supervisory 
 
         and/or superior in rank to claimant.
 
         
 
              2  Claimant had authority from defendant employer to seek 
 
         chiropractic treatment from a Dr. Wood.
 
         
 
              3.  Supervisory or superior police officers have authority 
 
         to give their subordinate officer permission under Iowa Code 
 
         section 85.27 to seek medical help, including chiropractic care.
 
         
 
              4.  Defendants are responsible for claimant's $1,174 
 
         chiropractic bill with Dr. Wood.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Defendants are responsible for Dr. Wood's bill in the amount 
 
         of $1,174.
 
         
 
                                      ORDER
 
         
 
              Defendants shall pay Dr. Wood's bill in the amount of one 
 
         thousand one hundred seventy-four dollars ($1,174.00).
 
         
 
              Defendants shall pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of March, 1990.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Bribriesco
 
         Attorney at Law
 
         2407 18th St Ste 202
 
         Bettendorf, IA  52722
 
         
 
         Ms Mary J. Thee
 
         Staff Attorney
 
         City Hall
 
         Legal Department
 
         226 W Fourth St
 
         Davenport, IA  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            2500
 
                                            Filed March 28, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANCES WILSON,
 
         
 
              Claimant,
 
                                                     File No. 905134
 
         vs.
 
         
 
         CITY OF DAVENPORT,                       A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS REINSURANCE CORP.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2500
 
         
 
              Held that claimant, a corporal in the defendant employer 
 
         police department, was able to rely on the permission of her 
 
         supervisory and/or superior officers to see a chiropractor with 
 
         whom claimant had been treating for other back problems prior to 
 
         her current injury.
 
         
 
              Four supervisors and/or superior in rank police sergeants 
 
         okayed claimant's seeing a chiropractor.
 
         
 
              Only issue was 85.27 benefits (authorization).  Defendants 
 
         ordered to pay claimant's $1,174 chiropractor bill.