BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HAROLD A. HANSEN,     
 
                        
 
                 Claimant,                      File No. 905800
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            THE QUAKER OATS COMPANY,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                    ISSUES
 
 
 
            The issues on appeal are:
 
            Whether claimant has proved that his alleged injury on 
 
            December 11, 1988 arose out of and in the course of his 
 
            employment; and whether claimant has proved a causal 
 
            connection between the alleged work injury and alleged 
 
            disability.
 
            Defendant employer has appealed this matter and did not 
 
            raise the issue of entitlement or reasonableness of medical 
 
            services, more specifically whether the employer should be 
 
            liable for payment of charges of Doctor Walker.  Because the 
 
            employer has not raised the issue it will not be discussed 
 
            and the award in this matter will be the same as that in the 
 
            arbitration decision.
 
 
 
                                FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed February 14, 1991 are adopted as final agency 
 
            action.
 
                                  CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed February 14, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            I.  Claimant has the burden of proving by a preponderance of 
 
            the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health 
 
            impairments, and a work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            In the case sub judice, defendant argues that although 
 
            claimant was performing work activity in bending over, the 
 
            act of bending is not a sufficient act to invoke 
 
            compensability.  It is true that Iowa courts have adopted a 
 
            legal or higher standard of activity or stress for heart 
 
            attacks and mental injuries.  In those type of cases, the 
 
            stress must be more than normal to award benefits.  However, 
 
            no such additional test is applied in other cases.  The 
 
            so-called "increase risk" doctrine had been applied in the 
 
            past cases involving exposure to weather extremes.  Now, 
 
            even that standard has been recently relaxed by the Iowa 
 
            Supreme Court.  See Hanson v. Reichelt, Supreme Court 
 
            Decisions, 88-1808, filed March 21, 1990.  The well 
 
            established rule remains unchanged.  An employer takes an 
 
            employee subject to any active or dormant health problem and 
 
            assumes the risk of lighting up an underlying propensity for 
 
            injury or disease.  Hansen v. Dickinson, 188 Iowa 728, 
 
            732-33, 176 N.W. 823, 824-25 (1920).  The real fighting 
 
            issue in this case as well as other similarly situated 
 
            cases, is the causal connection of the incident or injury to 
 
            permanent disability, not whether the work injury occurred.  
 
            Even Dr. Robb, defendant's expert witness, refers to the 
 
            incident as an injury.
 
            II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical 
 
            condition has resulted in an industrial disability is 
 
            determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, 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; 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985).
 
            Furthermore, the finding of industrial disability in this 
 
            case is not dependent upon the finding of permanent partial 
 
            impairment.  It was found that the work injury caused a job 
 
            transfer.  Permanent disability benefits can be awarded for 
 
            a loss of earning capacity as a result of a job transfer.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); McSpadden v. Big Ben Oil Co., 288 N.W.2d 181 (Iowa 
 
            1980).
 
            In the case sub judice, it was found that claimant has 
 
            suffered a 10 percent loss of his earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 50 weeks of 
 
            permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(u) which is 10 percent of 500 weeks, the 
 
            maximum allowable for an injury to the body as a whole in 
 
            that subsection.
 
            As claimant has established entitlement to permanent partial 
 
            disability, claimant is entitled to weekly benefits for 
 
            healing period under Iowa Code section 85.34 from the date 
 
            of injury until he returns to work.  In this case, claimant 
 
            returned to work on December 18, 1988.  Claimant will be 
 
            awarded healing period benefits for the time he was off work 
 
            in December of 1988 as stipulated by the parties.
 
            Given the payment of disability income and claimant's 
 
            extensive prior history of back problems, there is no case 
 
            here for additional benefits due to an unreasonable denial 
 
            of the claim under Iowa Code section 86.13.
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if claimant has paid those expenses.  
 
            Otherwise, claimant is entitled to an order directing the 
 
            responsible defendant to make such payments.  See Krohn v. 
 
            State, 420 N.W.2d 463 (Iowa 1988).
 
            In the case at bar, defendant stipulated as to the causal 
 
            connection of the requested expenses.  Defendant claims that 
 
            these expenses however were not authorized.  Defendant has 
 
            denied liability for this injury and has no right to chose 
 
            the care.  Kindhart v. Fort Des Moines Hotel, I Iowa 
 
            Industrial Commissioner Decisions 3, 611 (Appeal Decision 
 
            1985); Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
            Commissioner Report 16 (Appeal Decision 1981).  Therefore, 
 
            the requested expenses will be awarded despite the claim of 
 
            a lack of authorization.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            That defendant shall pay to claimant 50 weeks of permanent 
 
            partial disability benefits at the stipulated rate of three 
 
            hundred twenty-seven and 43/l00 dollars ($327.43) per week 
 
            from December 19, 1988.
 
            That defendant shall pay to claimant healing period benefits 
 
            from December 12, 1988 through December 18, 1988, at the 
 
            rate of three hundred twenty-seven and 43/l00 dollars 
 
            ($327.43) per week.
 
            That defendant shall pay the medical expenses listed in the 
 
            prehearing report except that the defendant is not required 
 
            to pay more than the sum of three hundred dollars ($300) for 
 
            the evaluation by Dr. Walker.  Claimant shall be reimbursed 
 
            for any of the expenses paid by him.  Otherwise, defendant 
 
            shall pay the provider directly along with any lawful late 
 
            payment penalties imposed upon the account by the provider.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            That defendant shall pay the interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            That defendant shall file activity reports on the payment of 
 
            this award as requested by this agency pursuant to rule 343 
 
            IAC 3.l.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                          BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 2nd Ave. SE
 
            P. O. Box 2457
 
            Cedar Rapids,  IA  52406
 
            
 
            Ms. Carolyn M. Hinz
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids,  IA  52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             5-1100
 
                                             Filed November 17, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HAROLD A. HANSEN,     
 
                        
 
                 Claimant,                       File No. 905800
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            THE QUAKER OATS COMPANY,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            5-1100
 
            Defense argued that there should be a higher legal test in 
 
            back cases which would allow compensability only when the 
 
            activity was unusual and not the type of activity 
 
            experienced by the general population in non-employment 
 
            activity.  The argument was rejected as contrary to current 
 
            law.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD A. HANSEN,             :
 
                                          :        File No. 905800
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            THE QUAKER OATS COMPANY,      :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Harold 
 
            A. Hansen, claimant, against The Quaker Oats Company, 
 
            employer (hereinafter referred to as Quaker), a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on December 11, 1988.  On September 25, 
 
            1990, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The testimony and written exhibits received during 
 
            the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Quaker at the time of the alleged injury.
 
            
 
                 2.  If Quaker is liable for the alleged injury, 
 
            claimant is entitled to temporary total disability or heal
 
            ing period benefits from December 12, 1988 through December 
 
            18, 1988.  In addition, claimant is seeking such benefits 
 
            from June 13, 1990 through June 24, 1990, and defendant 
 
            agrees that he was not working during this time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            4.  If permanent partial disability benefits are awarded, 
 
            they shall begin as of December 19, 1988.
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $327.43.
 
            
 
                 6.  The medical bills (except for the fees of John 
 
            Walker, M.D.) submitted by claimant at hearing were fair and 
 
            reasonable and causally connected to the medical condition 
 
            upon which the claim is based, but the issue of their causal 
 
            connection to a work injury remains an issue to be decided.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits and additional benefits under Iowa Code section 
 
            86.13, unnumbered paragraph four, for an alleged unreason
 
            able denial of the claim;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                  IV.  The extent of claimant's entitlement to benefits 
 
            under Iowa Code section 85.39.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Quaker since 1969 and continues 
 
            to do so at the present time.  Claimant has performed vari
 
            ous jobs at Quaker, a company engaged in the manufacture of 
 
            cereals at its plant in Cedar Rapids, Iowa.  At the time of 
 
            the injury, claimant was a puffed goods and ready to eat 
 
            operator.  Claimant was earning $14.50 per hour at the time 
 
            of injury.  In September 1989, after the injury, claimant, 
 
            at his request, was transferred to the job of power sprayer 
 
            helper.  Although this transfer was from the night to the 
 
            day shift, claimant stated that the transfer was compelled 
 
            by back problems following the injury.  Claimant stated that 
 
            the operator job is heavier work than his current helper 
 
            job.  Claimant is currently earning $13.40 per hour in the 
 
            helper job, a $1.10 per hour cut in wages.
 
            
 
                 On or about December 11, 1988, claimant injured his low 
 
            back while bending over to lift a box from the conveyor 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            line.  This injury arose out of and in the course of his 
 
            employment.  Claimant did not actually lift the box but 
 
            experienced sharp low back pain in the process of bending.  
 
            Claimant immediately informed his supervisor and claimant 
 
            was taken to the hospital.  Physicians at the emergency room 
 
            diagnosed muscle strain and referred claimant to the company 
 
            doctor, Joseph Quetsch, M.D.  Dr. Quetsch diagnosed acute 
 
            lumbosacral spasm and directed claimant to take the rest of 
 
            the week off.  Claimant subsequently returned to work but 
 
            continued to experience intermittent pain.
 
            
 
                 Claimant was also treated after the injury on December 
 
            12, 1988, by a chiropractor, Leon Nus, D.C.  Claimant had 
 
            been under his care since 1986.  Prior to that time, 
 
            claimant was treated extensively over the four previous 
 
            years by another chiropractor, Joseph Geelan, D.C.  Dr. Nus 
 
            stated in his report that claimant improved at times when 
 
            treatment discontinued.  Claimant would resume treatment 
 
            when flare-ups occurred.  Claimant was receiving monthly 
 
            treatment from Dr. Nus between February and December 1988.  
 
            Dr. Nus did not treat claimant between June 1986 and 
 
            February 1988.  Dr. Nus characterized his monthly treatment 
 
            prior to the injury as maintenance in nature.  After the 
 
            injury, claimant received chiropractic adjustments twice a 
 
            month until he was transferred from the operator job in 
 
            September 1989.  Claimant also received intermittent care 
 
            from Dr. Quetsch after the injury.
 
            
 
                 After his transfer to the helper job, claimant was 
 
            assigned to overtime work performing the operator job he had 
 
            at the time of injury.  This work aggravated his back and 
 
            claimant obtained a restriction in October 1989 against per
 
            forming his job from John Walker, M.D., an orthopedic sur
 
            geon, who had evaluated claimant earlier that month.  The 
 
            assignment to overtime ended due to this restriction.
 
            
 
                 Claimant has had an extensive history of back problems.  
 
            In 1969, claimant developed low back pain at Quaker after 
 
            stooping for a couple of hours to repair a boxcar.  In 1989, 
 
            claimant injured his low back while playing volleyball in 
 
            the company gym at Quaker and was hospitalized for traction 
 
            and tests.  No surgery was performed at that time but 
 
            claimant wore a TENS or electrical device to relieve pain 
 
            for two months after the injury.  In 1984, claimant fell off 
 
            a ladder injuring his neck and was treated with a neck col
 
            lar.  In 1985, claimant pulled muscles in his low back after 
 
            bending over to pick up a pallet at Quaker.  No physician in 
 
            this case has opined that claimant suffered permanent par
 
            tial impairment as a result of any of these prior injuries.
 
            
 
                 As a result of the injury of December 11, 1988, 
 
            claimant was absent from his job at Quaker from December 12, 
 
            1988 through December 18, 1988, upon the advice of his 
 
            treating physicians.  Claimant failed to show that his 
 
            absence from work in the summer of 1990 was causally con
 
            nected to the injury in this case.  A physician authorizing 
 
            this absence stated that it was due to back pain but gave no 
 
            opinion as to its work relatedness.
 
            
 
                 Claimant has shown a causal connection between the work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury and a 10 percent permanent partial impairment to the 
 
            body as a whole.  This finding is based upon the views of 
 
            John R. Walker, M.D., an orthopedic surgeon, who examined 
 
            claimant in October 1989.  Noting claimant's prior injuries, 
 
            Dr. Walker clearly stated his firm opinion that the injury 
 
            of December 11, 1988, caused the permanent partial impair
 
            ment.  There was a contrary view expressed by another ortho
 
            pedic surgeon, William J. Robb, M.D., retained by defendant.  
 
            The views of Dr. Robb were not convincing.
 
            
 
                 In March 1990, Dr. Robb issued a report in which he 
 
            diagnosed chronic strain productive of symptoms but that 
 
            such symptoms were not incapacitating.  How Dr. Robb could 
 
            arrive at this conclusion when claimant was compelled to 
 
            change jobs in September 1989 and compelled to decline over
 
            time work in the operator job was not explained.  Possibly 
 
            Dr. Robb was not fully informed of the facts.  Dr. Robb also 
 
            stated in March that he did not "observe any findings that 
 
            would suggest permanent impairment."  Apparently, Dr. Robb 
 
            will not provide such a rating unless there are objective 
 
            findings from his testing.  Also, the results of Dr. Robb's 
 
            physical examination were completely different from those of 
 
            Dr. Walker with reference to limitations in range of motion, 
 
            the atrophy of the muscles of the left leg and the results 
 
            of the Flip sign.  The findings of Dr. Walker are more con
 
            sistent with claimant's oral testimony in this case as to 
 
            the nature of disability.  As claimant is found credible, 
 
            this gives greater weight to Dr. Walker's report.  Also, Dr. 
 
            Robb stated, at the request of defense counsel, that the 
 
            incident of December 11, 1988, while bending over was "a 
 
            mechanism of strain of the low back which would not be any 
 
            more extensive than that encountered in daily living, both 
 
            at home, recreation and at work."  Dr. Robb went on to state 
 
            that he did not feel that claimant suffered permanent par
 
            tial impairment as a result of the injury in part due to the 
 
            type of activity claimant was performing at the time.  It 
 
            appears that Dr. Robb is imposing a much more rigorous stan
 
            dard of causal connection than is required for a traditional 
 
            medical opinion.  It should also be noted with reference to 
 
            whether or not claimant had suffered an injury that in the 
 
            report of March 1990, Dr. Robb referred to the December 11, 
 
            1988 incident as a "strain."  In his July 1990 report, Dr. 
 
            Robb referred to the incident as an "injury."  
 
            
 
                 As a result of the work injury of December 11, 1988, 
 
            claimant has suffered a 10 percent loss of earning capacity.  
 
            This finding is made regardless of the finding of permanent 
 
            partial impairment.  It is found that the work injury, in 
 
            any event, compelled a job transfer to a lower paying job 
 
            resulting in a loss of earning capacity.  Although 
 
            claimant's medical condition before the work injury was not 
 
            excellent and he probably had some functional impairment 
 
            prior to the injury, he suffered no prior loss of earning 
 
            capacity as a result of his prior condition.  He was able to 
 
            continue in his higher paying operator job albeit with 
 
            extensive maintenance care from his chiropractors.  After 
 
            the injury, claimant had to seek lighter duty work when 
 
            chiropractic care, which increased to twice per month, 
 
            failed to help him maintain his operator job.  However, due 
 
            to the accommodations by Quaker, claimant is able to remain 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            working and his current job appears suitable and stable.  
 
            Therefore, claimant has suffered only a mild loss of 
 
            earnings.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, defendant argues that although 
 
            claimant was performing work activity in bending over, the 
 
            act of bending is not a sufficient act to invoke compens
 
            ability.  It is true that Iowa courts have adopted a legal 
 
            or higher standard of activity or stress for heart attacks 
 
            and mental injuries.  In those type of cases, the stress 
 
            must be more than normal to award benefits.  However, no 
 
            such additional test is applied in other cases.  The 
 
            so-called "increase risk" doctrine had been applied in the 
 
            past cases involving exposure to weather extremes.  Now, 
 
            even that standard has been recently relaxed by the Iowa 
 
            Supreme Court.  See Hanson v. Reichelt, Supreme Court 
 
            Decisions, 88-1808, filed March 21, 1990.  The well 
 
            established rule remains unchanged.  An employer takes an 
 
            employee subject to any active or dormant health problem and 
 
            assumes the risk of lighting up an underlying propensity for 
 
            injury or disease.  Hansen v. Dickinson, 188 Iowa 728, 
 
            732-33, 176 N.W. 823, 824-25 (1920).  The real fighting 
 
            issue in this case as well as other similarly situated 
 
            cases, is the causal connection of the incident or injury to 
 
            permanent disability, not whether the work injury occurred.  
 
            Even Dr. Robb, defendant's expert witness, refers to the 
 
            incident as an injury.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  How
 
            ever, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 Furthermore, the finding of industrial disability in 
 
            this case is not dependent upon the finding of permanent 
 
            partial impairment.  It was found that the work injury 
 
            caused a job transfer.  Permanent disability benefits can be 
 
            awarded for a loss of earning capacity as a result of a job 
 
            transfer.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980); McSpadden v. Big Ben Oil Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 10 percent loss of his earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 50 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 10 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until he returns to work.  In this case, 
 
            claimant returned to work on December 18, 1988.  Claimant 
 
            will be awarded healing period benefits for the time he was 
 
            off work in December of 1988 as stipulated by the parties.
 
            
 
                 Given the payment of disability income and claimant's 
 
            extensive prior history of back problems, there is no case 
 
            here for additional benefits due to an unreasonable denial 
 
            of the claim under Iowa Code section 86.13.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if claimant has paid those expenses.  
 
            Otherwise, claimant is entitled to an order directing the 
 
            responsible defendants to make such payments.  See Krohn v. 
 
            State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, defendant stipulated as to the 
 
            causal connection of the requested expenses.  Defendant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claims that these expenses however were not authorized.  
 
            Defendant has denied liability for this injury and has no 
 
            right to chose the care.  Kindhart v. Fort Des Moines Hotel, 
 
            I Iowa Industrial Commissioner Decisions 3, 611 (Appeal 
 
            Decision 1985); Barnhart v. MAQ Incorporated, I Iowa 
 
            Industrial Commissioner Report 16 (Appeal Decision 1981).  
 
            Therefore, the requested expenses will be awarded despite 
 
            the claim of a lack of authorization.
 
            
 
                  IV.  Claimant also seeks payment of the evaluation 
 
            fees charged by Dr. Walker.  Defendant does not dispute 
 
            claimant's entitlement to 85.39 benefits, only the reason
 
            ableness of the $623.00 fee charged for the evaluation.  The 
 
            only evidence offered on the issue of reasonableness was by 
 
            defendant submitting the charge made by Dr. Robb for his 
 
            evaluation.  There was no evidence that the bill was paid, 
 
            invoking the traditional Iowa rule that payment is evidence 
 
            of reasonableness.  See Lawson v. Fodyce, 237 Iowa 28, 50, 
 
            51; 21 N.W.2d 69 (Iowa 1945) and cases cited therein.  As 
 
            claimant has the burden of proof, an award of the full fee 
 
            cannot be made.  However, this does not mean that defendant 
 
            can escape payment of the entire fee.  Obviously, Dr. Walker 
 
            is entitled to something for his services.  Dr. Robb was 
 
            paid $282.00 for his evaluation.  Therefore, an award of 
 
            $300 to Dr. Walker appears to be reasonable.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant 50 weeks of perma
 
            nent partial disability benefits at the stipulated rate of 
 
            three hundred twenty-seven and 43/l00 dollars ($327.43) per 
 
            week from December 19, 1988.
 
            
 
                 2.  Defendant shall pay to claimant healing period ben
 
            efits from December 12, 1988 through December 18, 1988, at 
 
            the rate of three hundred twenty-seven and 43/l00 dollars 
 
            ($327.43) per week.
 
            
 
                 3.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report except that the defendant is not 
 
            required to pay more than the sum of three hundred dollars 
 
            ($300) for the evaluation by Dr. Walker.  Claimant shall be 
 
            reimbursed for any of the expenses paid by him.  Otherwise, 
 
            defendant shall pay the provider directly along with any 
 
            lawful late payment penalties imposed upon the account by 
 
            the provider.
 
            
 
                 4.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendant shall pay the interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendant shall pay the costs of this action as 
 
            requested by claimant in exhibit D pursuant to rule 343 IAC 
 
            4.33, including reimbursement of claimant's filing fee.
 
            
 
                 7.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 2nd Ave SE
 
            P O Box 2457
 
            Cedar Rapids  IA  52406
 
            
 
            Ms. Carolyn M. Hinz
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids  IA  52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1100
 
                           Filed February 14, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HAROLD A. HANSEN,             :
 
                                          :        File No. 905800
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            THE QUAKER OATS COMPANY,      :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1100
 
            Defense argued that there should be a higher legal test in 
 
            back cases which would allow compensability only when the 
 
            activity was unusual and not the type of activity 
 
            experienced by the general population in non-employment 
 
            activity.  The argument was rejected as contrary to current 
 
            law.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES V. SAULS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos.  905870
 
                                          :                 1038609
 
            CITY OF DAVENPORT,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CORROON & BLACK MANAGEMENT,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case on for hearing on December 9, 1993 at 
 
            Davenport, Iowa.  These are proceedings in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            occurring on December 27, 1988 and January 2, 1993.  The 
 
            record in the proceedings consist of the testimony of the 
 
            claimant and Candra Davis; claimant's exhibits A through I; 
 
            and, defendants' exhibits A, B and C.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 Regarding the December 27, 1988 injury (File No. 
 
            905870):
 
            
 
                 1.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits;
 
            
 
                 Regarding the alleged January 2, 1993 injury (File No. 
 
            1038609):
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment on January 2, 1993;
 
            
 
                 2.  Whether there is a causal connection between 
 
            claimant's alleged work injury and his disabilities;
 
            
 
                 3.  The nature and extent of claimant's entitlement to 
 
            disability benefits, if any;
 
            
 
                 4.  The 85.27 medical benefits issue, the issue within 
 
            that being causal connection, authorization and whether the 
 
            treatment was reasonable and necessary.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 48-year-old high school graduate.  He 
 
            related his prior work history before beginning work for the 
 
            City of Davenport in 1981.  His prior work involved various 
 
            jobs, manual labor and considerable lifting of heavy items.
 
            
 
                 Claimant described his job with defendant employer 
 
            which was basically a street maintenance worker.  He also 
 
            ran a jackhammer, tore up streets, poured cement, dug 
 
            ditches.
 
            
 
                 Claimant testified that on December 21, 1988, while in 
 
            the employer's parking lot, he slipped on some ice and fell 
 
            on a portion of his hands and then on his right shoulder.  
 
            Claimant reported the accident and related certain medical 
 
            attention that he had.  Claimant was released to work in 
 
            July of 1989 as a result of this injury and was not to use a 
 
            jackhammer.  He said he couldn't use a jackhammer anyway 
 
            because of the pain in his shoulders and arm.  Claimant was 
 
            then taken off work again in September 1989 and had several 
 
            injections.  He said he received no relief from these 
 
            injections.
 
            
 
                 Claimant said he was then referred to Iowa City and 
 
            indicated the number of tests and studies he went through 
 
            while he was there.
 
            
 
                 Claimant testified that in February 1990, he was 
 
            advised to see the Iowa Department of Rehabilitation 
 
            Services and in February 1990, he met with the department.  
 
            
 
                 On April 4, 1990, defendant employer took claimant back 
 
            to work as a janitor which was not his former job.  Claimant 
 
            worked 20 hours a week, cleaned offices, dumped garbage and 
 
            swept and mopped.  Claimant said he could not use his right 
 
            arm very well.
 
            
 
                 In the spring of 1991, claimant had a chance to become 
 
            involved in a blue print program in trying to help him find 
 
            a job and which would require no lifting.  Claimant said he 
 
            didn't take the program because he had to pay for it and 
 
            hoped the city would reimburse him.  He didn't have the 
 
            money to pay up front.  Claimant also said that a similar 
 
            situation occurred as to a heating and ventilation course in 
 
            March of 1991 at the Scott Community College.  Claimant 
 
            testified that from April 1990 to August 1991, he was 
 
            getting no medical attention.  In August of 1991, he went 
 
            back to Richard R. Ripperger, M.D., who said claimant should 
 
            no longer do his street job and recommended surgery.  
 
            Claimant said the City of Davenport would not authorize it.
 
            
 
                 On September 4, 1991, the defendant employer sent 
 
            claimant to David E. Conner, M.D.
 
            
 
                 On March 16, 1992, claimant began working for defendant 
 
            employer as a bus driver full time as he could no longer 
 
            work as a janitor.  He indicated the city posted the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            schedules and he never knew from day to day what route he 
 
            would have.  This bus driving job was 40 hours per week, 
 
            encompassing six days a week quite often.  He was required 
 
            to do no heavy lifting.  He would drive a bus and take 
 
            fares.
 
            
 
                 On January 2, 1993, claimant reported to work at 5:00 
 
            a.m.  He said he was having a lot of pain in his neck, 
 
            shoulder and arm all the time.  He described it as a 
 
            throbbing pain.  On that particular day, claimant slipped on 
 
            some ice when going to the bathroom on his first run in the 
 
            morning at the west end of Davenport around 6:03 a.m.  
 
            Claimant described the way the bus schedules are done and 
 
            how they are different on a Saturday and the various 
 
            subroutes.  He indicated that on Saturdays, the route would 
 
            not necessarily be the same and they would pick up people 
 
            who would call and they could actually be driving all over 
 
            town.  Claimant indicated that Monday through Friday, there 
 
            were certain stops they had to make and the supervisor would 
 
            give the bus driver the route assignments.  The claimant 
 
            indicated that on weekends there was a published list of 
 
            stops for the particular route.  He indicated they could use 
 
            wherever they could find a facility and that the company 
 
            would never punish a driver for using that particular stop 
 
            even if it wasn't necessarily published along the route.
 
            
 
                 Claimant then was referred to the February 6, 1992 
 
            Saturday subscription route.  Claimant said it was given to 
 
            him May 20, 1992, and is shown as joint exhibit I, page 136.  
 
            Claimant then was referred to joint exhibit I, page 137, 
 
            which is the authorized routes effective May 20, 1991, and 
 
            reissued January 26, 1993.  Claimant said he never saw this 
 
            last paper, page 137, until his workers' compensation claim 
 
            was filed.
 
            
 
                 Claimant then testified that his injury occurred at 
 
            Route 1, GTC and Hy-Vee at Rockingham and Concord, which is 
 
            the first route shown on page 137.  On January 2, 1993, 
 
            claimant stopped at the Kwik Shop on the route west of 
 
            Concord.  He said he could see the Hy-Vee store which is 
 
            across the street and that the stop he made was the nearest 
 
            place to use the washroom.  When he got out to go the the 
 
            Kwik Shop, he slipped and fell on the driveway and hurt his 
 
            right hand, hip, elbow, right shoulder, neck and right arm.  
 
            He called the office and told them he slipped and fell.  
 
            Claimant was taken to the hospital and had x-rays.  He then 
 
            saw Dr. Ripperger two days later in the emergency room and 
 
            on February 22, 1993, he had surgery on his elbow as an 
 
            outpatient.  Claimant indicated that he was to have physical 
 
            therapy but since the employer would not authorize it, he 
 
            never had it.
 
            
 
                 Claimant returned to work after this injury on May 28, 
 
            1993 full time and worked until September 1993.  Claimant 
 
            was off work on that date for an unrelated pulmonary 
 
            condition.  Claimant testified that he now has throbbing 
 
            numbness in the hand and shoulder if he tries to do anything 
 
            strenuous.  He takes Tylenol No. 3.
 
            
 
                 On cross-examination, claimant was referred to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            defendants' exhibit A which shows the route.  He explained 
 
            how he drove that route on that particular day up to the 
 
            time he stopped at the Kwik Shop which is circled in red on 
 
            defendants' exhibit C and as shown thereon is directly 
 
            across the street from the Hy-Vee store which was an 
 
            undisputed authorized stop.
 
            
 
                 Claimant said this Candra Davis never did explain the 
 
            subroutes or that one was not to take such routes different 
 
            than shown.  Claimant said that they were told to go the 
 
            best way they could to get to the person they had to pick up 
 
            on these Saturday weekend routes.  Claimant was then asked 
 
            why he didn't use Hy-Vee as a stop and claimant said it was 
 
            because he was going up Concord and that Hy-Vee is across 
 
            the street.
 
            
 
                 The undersigned might observe that in looking at 
 
            defendants' exhbibit C, it would appear that the street in 
 
            which claimant was driving would make it much easier to stop 
 
            at the Kwik Shop if he was intending to go up Concord 
 
            Street.  It would also appear to be the safest and the least 
 
            hazardous as far as crossing traffic.  Also, there is 
 
            testimony that the Hy-Vee store did not want people to park 
 
            their buses in their lot but was only to pick up passengers 
 
            and leave as soon as possible.
 
            
 
                 Candra Davis testified that she has worked for 
 
            defendant employer thirteen years and was originally an 
 
            operator and the last two years was supervisor of the city 
 
            buses.  She indicated she oversees the operation of several 
 
            bus operators, several buses and several routes.
 
            
 
                 Ms. Davis said that she trains the operators and they 
 
            discuss the regular and subscription routes and discuss all 
 
            memos as to where they were to stop.   She said pages 137 
 
            and 136 of joint exhibit I were given the claimant.  She 
 
            indicated claimant, also, was given these at an orientation.  
 
            She testified that the subscription routes, which is page 
 
            136, are the routes one is to keep as close to as possible.  
 
            She indicated one can deviate but one is to stay as close to 
 
            the regular routes as possible and also to the authorized 
 
            stops.
 
            
 
                 Ms. Davis was then referred to the second full 
 
            paragraph of joint I, page 136, in which it indicates a 
 
            driver is not to use the Hy-Vee on Kimberly Road to go 10-7 
 
            or 10-100 and that one was not to park in the lot.  Ms. 
 
            Davis explained that 10-7 means out of service and 10-100 
 
            means use of the restroom.  She indicated that one is to try 
 
            to use the authorized 10-100 stops.  Ms. Davis indicated 
 
            that the reason for the operator having authorized stops is 
 
            that they are either safe or the business has okayed it for 
 
            the bus drivers to stop and the company also knows where the 
 
            drivers are.  She indicated it is necessary to discipline a 
 
            driver if one is off the route.
 
            
 
                 On cross-examination, Ms. Davis was asked to identify 
 
            those who have been disciplined for such conduct and she was 
 
            not able to specifically name anyone.  She also acknowledged 
 
            that the subscription routes don't constitute a regular 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            route.  She further indicated these subscription routes are 
 
            subject to change and are added to or deleted when 
 
            necessary.  Ms. Davis indicated she wasn't a supervisor on 
 
            May 28, 1991, when claimant was to have gotten the May 20, 
 
            1991 authorized stops memo.  She indicated she gave the 
 
            orientation to the claimant as a fellow bus driver and when 
 
            done, she thought she gave claimant a copy of page 137.  She 
 
            had no checklist as to indicate whether she gave a copy to 
 
            the particular bus driver.  She prepared the packets for the 
 
            bus driver.  Ms. Davis did not know why claimant stopped at 
 
            the Kwik Shop and had no idea why he was there.  She 
 
            understood he was using the washroom.
 
            
 
                 She acknowledged that she is familar with the Kwik Shop 
 
            shown on defendants' exhibit C and indicated that was close 
 
            to his route.
 
            
 
                 Claimant's exhibit B is the records of Orthopaedic 
 
            Surgery Associates.  Pages 20 through 31 deal with 
 
            claimant's December 27, 1988 alleged injury and pages 16 to 
 
            20 deal additionally with claimant's January 2, 1993 injury.
 
            
 
                 Richard R. Ripperger, M.D., opined on July 17, 1990, 
 
            that claimant had a 31 percent permanent impairment of his 
 
            right upper extremity. (Cl. Ex. B, pp. 23 and 24)  On that 
 
            same date, he scheduled claimant for another trial of 
 
            synthetic blocks as he thought claimant had a continued 
 
            ulnar nerve rotation with some degree of reflex sympathetic 
 
            dystrophy.  He said claimant was not ready to return to 
 
            unrestricted work yet at that time.  Pages 16 to 20 deal 
 
            with claimant's January 2, 1993 injury in which he fell on 
 
            his right upper extremity.  Page 17 of said exhibit shows 
 
            that claimant under general anesthesia had a right ulnar 
 
            nerve interior submuscular transposition performed.  Page 16 
 
            of said exhibit shows that claimant was told he may attempt 
 
            to return to work as a bus driver without restrictions on 
 
            May 28, 1993.  In claimant's exhibit B, page 22, on August 
 
            23, 1991, the doctor did not believe the claimant would be 
 
            able to return to his regular employment as a street 
 
            maintenance worker.  He believed the type of job he was 
 
            currently doing involving relative light activities was 
 
            appropriate.  On October 15, 1991, Dr. Ripperger wrote, as 
 
            reflected in exhibit C, page 32, that he felt it unsafe for 
 
            claimant to operate a motor vehicle as described in 
 
            defendant employer's "transit operator" job description.  
 
            The doctor also corrected the insurance carrier or insurance 
 
            administrator that he felt claimant's symptoms were severe 
 
            enough to justify proceeding with surgery as previously 
 
            outlined by him.
 
            
 
                 Page 26 of claimant's exhibit B (August 7, 1989) shows 
 
            that Dr. Ripperger was concerned about the fact the claimant 
 
            either wasn't following his restrictions or defendant 
 
            employer was not honoring the restrictions as claimant was 
 
            operating the jackhammer and the doctor thought this would 
 
            hurt claimant not only short term but possibly long term as 
 
            far as his healing.
 
            
 
                 Claimant's exhibit C, page 35, is a November 27, 1990 
 
            letter of Dr. Ripperger in which he clarifies and elaborates 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            on his prior opinion. (Cl. Ex. B, p. 23)  He opined claimant 
 
            had a permanent impairment of the right extremity of 31 
 
            percent.  In November 1990, the doctor said that that 
 
            impairment rating did not take into account any condition 
 
            involving claimant's right shoulder.  He, therefore, opined 
 
            that the impairment, however, affects the patient's entire 
 
            right upper extremity including his shoulder and in turn the 
 
            upper extremity impairment affects the whole man.  It is 
 
            obvious the doctor has the claimant's attorney confused as 
 
            well as others most likely because on November 1, 1990, 
 
            represented by claimant's exhibit C, page 36, he referred to 
 
            claimant's 31 percent permanent impairment of the upper 
 
            extremity and indicated that corresponds to a 19 percent 
 
            impairment to the whole person and referred to the AMA 
 
            Guides to the Evaluation of Permanent Impairment, Third 
 
            Edition.  It appears to the undersigned, taking into 
 
            consideration all of the pages of claimant's exhibit C and 
 
            taking them as a whole, that the doctor actually is 
 
            concluding that claimant has an impairment to his upper 
 
            extremity.  The upper extremity is not part of the body as a 
 
            whole and that when he mentions the body as a whole, he is 
 
            converting a 31 percent upper extremity or arm impairment to 
 
            a body as a whole which is improper under the circumstances 
 
            of the facts of this case.
 
            
 
                 Claimant's exhibit D, page 45, reflects the operation 
 
            claimant had which involved a submuscular right ulnar nerve 
 
            transition and in which the preoperative prognosis was right 
 
            cubital tunnel syndrome.
 
            
 
                 The undersigned might note that the medical records are 
 
            confusing to the extent of trying to determine exactly what 
 
            particular service was being done in relation to the 
 
            particular injury involved in that they are both having to 
 
            do with the right upper extremity.  Claimant's exhibit D, 
 
            page 47, refers to another operation, namely, a right 
 
            stellat ganglion block and sympathetic block on the right 
 
            upper extremity.  The undersigned is presuming this has to 
 
            do with the January 1993 fall and as the undersigned 
 
            presumes it is a case with the February 22, 1993 operation 
 
            previously referred to on page 45 of said exhibit.  On page 
 
            50 of claimant's exhibit D, there is reference to IV 
 
            regional right suprascapular nerve block and refers to 
 
            claimant fracturing his elbow several years ago and 
 
            developing a type of reflex sympathetic dystrophy syndrome.  
 
            Even though these are just a few pages within each other, 
 
            the undersigned presumed that that has to do with the 1988 
 
            injury to claimant's right upper extremity because of a 
 
            reference to an injury several years ago.  On page 51 of 
 
            claimant's exhibit D there is reference to a right 
 
            suprascapular nerve block that was done and that the area to 
 
            inject was found by palpating the scapula spine and just 
 
            superior to this.
 
            
 
                 Claimant's exhibit D, page 62, 64 and 76, reflects 
 
            additional operations claimant had on his right upper 
 
            extremity all in 1989 so these would have to do with 
 
            claimant's 1988 injury.
 
            
 
                 Claimant's exhibit E, pages 81 through 92, refers 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            solely to treatment for claimant resulting from this 1988 
 
            injury.
 
            
 
                 Claimant's exhibit G is the vocational rehabilitation 
 
            records indicating claimant went to the Division of 
 
            Vocational Rehabilitation Services and worked with them in 
 
            an attempt to find or keep employment.  It shows claimant 
 
            was concerned about losing his city pension and was 
 
            concerned about losing his job.  It is obvious he wanted to 
 
            continue working if he was able to.  Page 103 shows claimant 
 
            was arranging with the Division of Vocational Rehabilitation 
 
            to take a test and get additional training and finances for 
 
            the same.
 
            
 
                 Claimant's exhibit H is the class title of a street 
 
            maintenance worker for defendant employer.  It is obvious in 
 
            looking at it that claimant's job comprised of a 
 
            considerable amount of manual labor and the requirement to 
 
            perform every kind of manual labor, heavy lifting, 
 
            continuous standing, digging, etc.
 
            
 
                 As shown on defendants' exhibit B, claimant was placed 
 
            as a part-time custodian in the maintenance division at 
 
            $4.50 per hour on April 5, 1990 and his pay was supplemented 
 
            with temporary partial disability benefits.  Claimant 
 
            remained in that position until he was hired as a transit 
 
            operator on May 16, 1993.  He was then in that position at 
 
            the time of his 1993 injury.  Claimant's rate of pay as a 
 
            transit operator was slightly more than what his pay would 
 
            be at the same period of time if he was still a street 
 
            maintenance worker in the public services department.  
 
            Claimant's last day of work was September 15, 1993, and he 
 
            has been approved for payment of long-term disability 
 
            benefits at the conclusion of the 90 day waiting period.  
 
            The evidence shows claimant is unable to work now because of 
 
            a lung condition that has no connection with either of the 
 
            herein injuries.
 
            
 
                 As to the December 27, 1988 work injury, the only issue 
 
            is the extent of claimant's permanent disability and 
 
            entitlement to disability benefits.  The undersigned finds 
 
            the greater weight of evidence shows that claimant has a 
 
            scheduled member injury to his right upper extremity and 
 
            that he does not have a body as a whole injury.   Dr. 
 
            Ripperger opined on July 17, 1990 that claimant had a 31 
 
            percent permanent impairment of his right upper extremity.   
 
            He indicated in further reports that he converted this to a 
 
            19 percent body as a whole.  This conversion is improper 
 
            under the facts of this case.  Therefore, the undersigned 
 
            finds that claimant has a 31 percent permanent impairment to 
 
            his right upper extremity as a result of his December 27, 
 
            1988 injury and is entitled to 77.5 weeks of permanent 
 
            partial disability benefits at the rate of $226.42.  
 
            Benefits would begin on October 6, 1990.
 
            
 
                 As to the January 2, 1993 work injury, it seems that 
 
            the defendants' basic position is that claimant deviated 
 
            from his course and therefore is not entitled to benefits as 
 
            he did not have a work injury or an injury that arose out of 
 
            and in the course of his employment.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 The medical evidence in this case for the most part 
 
            revolves around claimant's December 1988 injury.  There is 
 
            no impairment rating or additional impairment to claimant's 
 
            right upper extremity as a result of the January 2, 1993 
 
            fall as far as the evidence in this case.   There is 
 
            insufficient evidence to show that claimant incurred any 
 
            permanent disability or any increased permanent disability 
 
            as a result of the January 2, 1993 fall.
 
            
 
                 The undersigned finds that claimant did incur an injury 
 
            on January 2, 1993 that arose out of and in the course of 
 
            his employment and this caused claimant to incur some 
 
            temporary total disability.  The undersigned finds that 
 
            claimant did not deviate from his course of driving the city 
 
            bus on January 2, 1993, or if his conduct is considered a 
 
            deviation, it was not material or substantial. Although the 
 
            evidence shows there are certain recognized stops, the 
 
            evidence clearly shows that the place claimant stopped was 
 
            not only along his route but across the street from an 
 
            authorized route.  Claimant needed to use the washroom or 
 
            the bathroom and it is obvious from the evidence and 
 
            exhibits that the Kwik Shop would in fact be the closest 
 
            even if claimant had parked in the Hy-Vee lot.
 
            
 
                 The evidence also shows that the Hy-Vee store did not 
 
            want people to park in their lot but did authorize it as a 
 
            dropoff or pickup point.  It, therefore, seems further 
 
            logical that claimant's bus stoppage at the Hy-Vee would not 
 
            have been the most practical in light of the defendants' own 
 
            testimony that Hy-Vee authorized that as a stop but did not 
 
            want the buses to park there.
 
            
 
                 Defendants take the position that the reason for these 
 
            specific stops is that they wanted to know where the person 
 
            was and so they could get hold of the driver in an 
 
            emergency.  It is clear from the evidence that there is no 
 
            way along the line that the employer would particularly know 
 
            that a bus driver had in fact stopped at a particular stop 
 
            at a particular time in order to reach him as an emergency.  
 
            There is no evidence that the driver calls in each time he 
 
            goes to or by an authorized stop.
 
            
 
                 It would seem that if in fact action was going to be 
 
            taken because of claimant stopping at an unauthorized stop, 
 
            even though it was actually along the route he was to drive 
 
            that day, any proper action would be a reprimand but not 
 
            denying workers' compensation benefits.  There is no dispute 
 
            that claimant fell when he left the bus in order to use the 
 
            restroom.  There is no rule that indicates a person cannot 
 
            stop and use the restroom or washroom.  While there is no 
 
            evidence this was necessary in the case, the undersigned can 
 
            see that one might need to use the bathroom due to a sudden 
 
            emergency or a sudden reason and the closest restroom would 
 
            be the most advisable under the circumstances.  The 
 
            undersigned finds defendants' reason for denying any 
 
            benefits as unacceptable.
 
            
 
                 The parties agreed that claimant was off work as a 
 
            result of the January 2, 1993 injury or from January 3, 1993 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            through May 28, 1993.  The undersigned finds that this is in 
 
            fact claimant's period to which he is entitled to temporary 
 
            total disability benefits.
 
            
 
                 As indicated earlier, there is no evidence that 
 
            claimant incurred permanency or any additonal permanency to 
 
            his right upper extremity or any part thereof.  It would 
 
            appear that claimant continued to work after he returned to 
 
            work and operated a bus until his last day of work on 
 
            September 15, 1993.  His reason for leaving work had nothing 
 
            to do with claimant's injuries herein.  The undersigned 
 
            finds that claimant is entitled to 20.857 weeks of temporary 
 
            total disability as a result of his January 2, 1993 work 
 
            injury and said benefits are payable at the weekly rate of 
 
            $226.42.  The undersigned further finds that said temporary 
 
            total disability was caused by claimant's January 2, 1993 
 
            work injury.
 
            
 
                 As to the 85.27 medical issue, the parties agreed that 
 
            if in fact causal connection and arising out of claimant's 
 
            employment were found, these medical bills would in fact be 
 
            payable by defendants.  Having found that said injury arose 
 
            out of and in the course of claimant's employment and that 
 
            said injury caused claimant to incur the medical bills, the 
 
            undersigned finds that defendants are obligated to pay the 
 
            medical bill that currently exist in the amount of $5,024.05 
 
            as a result of claimant's January 3, 1993 injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of 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).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 It is further concluded that as to claimant's December 
 
            27, 1988 injury, he incurred a 31 percent permanent 
 
            impairment to his upper extremity/arm that was caused by 
 
            said work injury entitling claimant to 77.5 weeks of 
 
            permanent partial disability benefits at the rate of 
 
            $226.42.
 
            
 
                 Claimant is entitled to temporary total disability 
 
            benefits in the amount of 20.871 weeks as a result of a 
 
            January 2, 1993 injury that arose out of and in the course 
 
            of claimant's employment and caused him to incur said 
 
            temporary total disability.
 
            
 
                 It is further concluded that claimant is entitled to 
 
            have his medical bills paid by defendants in the amount of 
 
            $5,024.05.  Said bills were incurred as a result of 
 
            claimant's January 2, 1993 injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Regarding the December 27, 1988 injury (File No. 
 
            905870):
 
            
 
                 Defendants shall pay unto claimant ninety-three point 
 
            seven one four (93.714) weeks of healing period benefits for 
 
            the period of December 27, 1988 through October 5, 1990 at 
 
            the weekly rate of two hundred twenty-six and 42/100 dollars 
 
            ($226.42).
 
            
 
                 That defendants shall pay unto claimant seventy-seven 
 
            point five (77.5) weeks of permanent partial disability 
 
            benefits at the weekly rate of two hundred twenty-six and 
 
            42/100 dollars ($226.42) beginning October 6, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties have 
 
            stipulated that defendants have paid seventy-seven point 
 
            five seven one (77.571) weeks of benefits for which they 
 
            want credit, but it is apparent to the undersigned that that 
 
            would have been toward healing period.  The parties have 
 
            stipulated that claimant incurred a healing period from 
 
            December 27, 1988 through October 5, 1990, which would 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            encompass ninety-three point seven one four (93.714) weeks.  
 
            Therefore, there have been no payments to credit against any 
 
            permanent partial disability benefits.  Also, in accordance 
 
            with the parties' stipulation, it would appear that 
 
            defendants owe claimant an additional sixteen point one four 
 
            three (16.143) weeks of healing period.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Regarding the January 2, 1993 injury (File No. 
 
            1038609):
 
            
 
                 That defendants shall pay unto claimant sixteen point 
 
            eight five seven (16.857) weeks of temporary total 
 
            disability benefits at the rate of two hundred twenty-six 
 
            and 42/100 dollars ($226.42) beginning January 3, 1993 
 
            through May 28, 1993.
 
            
 
                 That defendants shall pay claimant's medical bills in 
 
            the amount of five thousand twenty-four and 05/100 dollars 
 
            ($5,024.05).
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid no 
 
            benefits.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Nick J Avgerinos
 
            Attorney at Law
 
            135 S LaSalle St  Ste 1527
 
            Chicago IL 60603
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Ms Mary J Thee
 
            Legal Dept
 
            Attorney at Law
 
            City Hall
 
            226 W 4th St
 
            Davenport IA 52801
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803.1; 5-1803; 5-1100
 
                                         5-1108; 5-1801; 5-2500
 
                                         Filed Febraury 10, 1994
 
                                         Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES V. SAULS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos.  905870
 
                                          :                 1038609
 
            CITY OF DAVENPORT,            :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CORROON & BLACK MANAGEMENT,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            As to December 27, 1988 injury (File No. 905870):
 
            
 
            5-1803; 5-1803
 
            Found claimant incurred a 31% permanent impairment to his 
 
            right upper extremity.
 
            
 
            As to January 2, 1993 injury (File No. 1038609)
 
            
 
            5-1100; 5-1108; 5-1803
 
            Found claimant incurred an injury that arose out of and in 
 
            the course of his employment causing claimant to incur 
 
            16.857 weeks of temporary total disability.
 
            
 
            5-2500
 
            Found defendants are to pay claimant's medical bills in 
 
            amount of $5,024.05.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICKY L. JAHN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        File No. 905983
 
                                          :
 
            CUSTOM WOODWORKS, LTD.,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Ricky L. 
 
            Jahn against Custom Woodworks, Ltd., employer, and Hartford 
 
            Insurance Group, insurance carrier.
 
            
 
                 Claimant alleges that he sustained a compensable injury 
 
            to his back on December 16, 1988 and seeks compensation for 
 
            an industrial disability.
 
            
 
                 The case was heard at Sioux City, Iowa on October 16, 
 
            1990 and was considered fully submitted upon conclusion of 
 
            the hearing.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of claimant and Lynn Easterday, a rehabilitation specialist.  
 
            Additionally, the parties offered joint exhibits 1 through 
 
            55 which were received into evidence.
 
            
 
                                      issue
 
            Pursuant to the prehearing report submitted and approved at 
 
            the hearing, the sole issue to be determined in this case is 
 
            whether claimant's work-related injury caused permanent 
 
            industrial disability.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all the evidence, finds 
 
            the following facts:
 
            
 
                 On December 16, 1988, claimant sustained an injury 
 
            which arose out of and in the course of his employment when 
 
            he and a co-worker were moving a sheet of Corian simulated 
 
            marble, that weighed approximately 150 pounds.  As claimant 
 
            started to lift the piece of Corian, he felt his lower back 
 
            "catch", and felt some restriction when he tried to 
 
            straighten up.  He attempted to work out the catch by doing 
 
            some stretching and twisting motions.
 
            
 
                 The next day, he received a stimulator treatment from 
 
            Dean Poss, D.O., a chiropractor.  Claimant was still in a 
 
            great amount of pain.
 
            
 
                 Claimant remained off work, and came under the care of 
 
            M. E. Wheeler, M.D., an orthopaedic surgeon.  Dr. Wheeler 
 
            diagnosed acute low back strain and prescribed analgesics 
 
            and antiinflammatories.  He admitted claimant to St. Luke's 
 
            Regional Medical Center in Sioux City, Iowa on December 20, 
 
            1988.  Claimant was released four days later, and Dr. 
 
            Wheeler prescribed a back corset, as well as rest, walking 
 
            and flexing exercises.  During the next two weeks, claimant 
 
            improved but did not return to work.
 
            
 
                 On January 13, 1989, claimant returned to Dr. Wheeler 
 
            with pain in his back that was "worse than before."  He was 
 
            again admitted to the medical center in Sioux City, and 
 
            underwent a CT scan, an MRI, and other x-rays.  Radiology 
 
            results revealed a herniated disc at L4-5.  He consulted 
 
            with W. O. Samuelson, M.D., a partner of Dr. Wheeler's, who 
 
            did not recommend surgery.  Claimant received a second 
 
            opinion from T. Ragnarsson, M.D., a neurosurgeon, who 
 
            recommended and subsequently performed a lumbar diskectomy 
 
            on January 19, 1989.
 
            
 
                 During the next several weeks claimant received 
 
            follow-up treatment with Q. Durward, M.D., at the Marian 
 
            Health Center in Sioux City, Iowa.  Dr. Durward's notes 
 
            indicate claimant was healing properly with respect to the 
 
            right side of his back, but that claimant had developed left 
 
            low back pain.  On March 8, 1989, an MRI was performed at 
 
            both the left L4-5 and L5-S1 disc region.  The results of 
 
            this MRI revealed a central and left L4-5 disc bulge, but no 
 
            rupture.  (Jt. Ex. 25).  Claimant underwent therapy at 
 
            Marian Health Center and was then sent to Back Care, Inc.  
 
            Claimant continued to have problems in the left low back, 
 
            and on May 16, 1989, claimant continued isokinetic 
 
            rehabilitation, and responded well to the treatment.  Dr. 
 
            Durward rendered his opinion that claimant had sustained a 
 
            permanent partial impairment of ten percent, and released 
 
            claimant for work with permanent lifting restrictions of a 
 
            maximum of 40 pounds, and on a regular basis no more than 25 
 
            pounds.  Additionally, Dr. Durward opined that claimant 
 
            should avoid all bending and twisting.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Prior to the injury that promulgated this litigation, 
 
            claimant had a nonwork related incident in 1982 or 1986, 
 
            which resulted in injury to this upper back.
 
            
 
                 Claimant apparently saw James A. Bjork, D.C., a 
 
            chiropractor, for low back pain in 1982.  Claimant also 
 
            received chiropractic treatment from Gerald A. Chicoine, 
 
            D.C., for low back pain in 1983.  He was also treated by Dr. 
 
            Bjork in the spring and summer of 1988 for low back and 
 
            right sacro-iliac pain, stiffness and muscle tension.  
 
            Additionally, he was treated by Byron L. Linden, M.D., and 
 
            Dr. Poss in November and early December 1988, for muscle 
 
            spasms in his back.  He also saw Dr. Poss in June or July 
 
            1988, for the same reasons.
 
            
 
                 Claimant was released for work by Dr. Durward on May 
 
            16, 1989.  He returned to Custom Woodworks, Ltd., in a light 
 
            duty work capacity.  The employer did try to accommodate his 
 
            limitations at first, but gradually, claimant began to work 
 
            in the "monumental area."  Working in this area required an 
 
            extensive amount of bending, and claimant was required to do 
 
            laminating work, cut particle board, and sanding.  He did 
 
            not work as many hours as before, and could not handle more 
 
            than 12 hour days.  Periodically he would ask for help in 
 
            the finish room, but none was provided.  Eventually, 
 
            claimant quit his job because his back began to hurt.  At 
 
            that time, he was offered a part-time draftsman position for 
 
            lower pay.  During slower times, the employer admitted 
 
            claimant would have to go back to the shop to work.  
 
            Claimant was making $8.35 per hour when he left Custom 
 
            Woodworks, Ltd.
 
            
 
                 Claimant began to work for Eagle Window and Door in 
 
            South Sioux City, Nebraska.  He works primarily as a 
 
            salesperson, although he does perform service work if 
 
            needed.  His rate of pay is based on a commission, with a 
 
            minimum guarantee of $350 per week.  Thus far, he has not 
 
            made enough sales to draw the commission.
 
            
 
                 Dr. Durward stated his opinion that claimant has a 
 
            permanent partial impairment of ten percent.  He also 
 
            imposed a permanent lifting restriction of a maximum of 40 
 
            pounds, and on a regular basis no more than 25 pounds.  He 
 
            also stated claimant should avoid all bending and twisting.  
 
            D. K. Nelson, M.D., a physician with Back Care, Inc., 
 
            concurred on both the impairment and the restrictions.
 
            
 
                 Claimant was evaluated by Bernard L. Kratochvil, M.D., 
 
            on April 6, 1990.  Dr. Kratochvil rendered a 15 percent 
 
            permanent partial impairment of the whole body and lifting 
 
            restriction of 25 pounds.
 
            conclusions of law
 
            
 
                 According to the hearing assignment order and the 
 
            prehearing report submitted at the hearing, the sole issue 
 
            to be decided in the case is the extent of claimant's 
 
            industrial disability, if any, as a result of his work 
 
            related back injury sustained on January 16, 1988.
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Specifically, factors to be considered in determining 
 
            industrial disability include the employee's medical 
 
            condition prior to the injury, immediately after the injury, 
 
            and presently; situs of the injury, it's severity and 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 
 
            to 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.
 
            
 
                 Claimant, at the time of his injury, was 34 years old 
 
            and a high school graduate.  His primary work experience 
 
            consists of jobs as a gas station attendant; a forklift 
 
            operator; over-the-counter sales; and carpentry work.  Some 
 
            of the positions required claimant to lift objects, but the 
 
            job he held with Custom Woodworks, Ltd., required claimant 
 
            to perform extensive heavy lifting duties.
 
            
 
                 Claimant testified that he feels he could not return to 
 
            the type of work he was performing prior to the injury, and 
 
            feels he is limited in the amount of carpentry he can 
 
            undertake.  These restrictions are paralleled by the medical 
 
            restrictions placed upon him.  Specifically, claimant is to 
 
            avoid all twisting and bending, and is to avoid lifting of 
 
            between 25-40 pounds.
 
            
 
                 And, claimant has received two impairment ratings, one 
 
            of ten percent, the other fifteen percent.  Both physicians 
 
            restricted claimant's lifting activities.
 
            
 
                 Claimant appeared to be motivated, a finding 
 
            substantiated by the fact that claimant returned to work for 
 
            his employer.  It is noted and well received by the 
 
            undersigned that the defendant employer tried to accommodate 
 
            claimant and his limitations.  However, claimant was unable 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to perform the duties demanded by his position, and 
 
            subsequently quit his job with defendants.  Claimant did 
 
            appear to be cautious with regards to activities he could or 
 
            could not perform, but not overly so, and his desire to find 
 
            a position suitable to his interests and restrictions is 
 
            documented by his testimony and work history.
 
            
 
                 Lynne Easterday, a rehabilitation specialist, testified 
 
            on behalf of claimant.  In her opinion claimant is 
 
            restricted to a "light" category of physical exertion.
 
            
 
                 Although claimant continues to work in excess of 
 
            40-hour work weeks, his current position does not require 
 
            the physically demanding work he performed at the time of 
 
            his injury.  According to at least one doctor, claimant is 
 
            still suffering from some disc abnormality.
 
            There are no weighting guidelines that indicate how each of 
 
            the factors are to be considered.  There are no guidelines 
 
            which give, for example, age a weighted value of ten percent 
 
            of the total value, education a value of fifteen percent of 
 
            total, motivation - five, percent; work experience - thirty 
 
            percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial 
 
            disability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagem, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant has sustained an industrial disability or loss 
 
            of earning capacity in the amount of 23 percent.  Defendants 
 
            have previously paid the functional impairment of 10 
 
            percent, or 50 weeks, and are hereby ordered to pay an 
 
            additional 65 weeks of permanent partial disability 
 
            benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for sixty five (65) weeks at the rate of three 
 
            hundred thirteen and 97/100 dollars ($313.97) commencing on 
 
            June 8, 1990.
 
            
 
                 Defendants pay accrued amounts in a lump sum and shall 
 
            receive credit against the award for weekly benefits 
 
            previously paid.
 
            
 
                 Defendants pay interest on benefits awarded herein as 
 
            set forth in Iowa Code section 85.30.
 
            
 
                 Defendants pay the costs of this proceeding, pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the agency pursuant to Division of Industrial Services Rule 
 
            343-3.1(2).
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Roger L. Carter
 
            Attorney at Law
 
            Jackson Plaza, Ste. 300
 
            PO Box 327
 
            Sioux City, Iowa 51102
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Bldg.
 
            PO Box 1828
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1803
 
                      Filed December 27, 1990
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICKY L. JAHN, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File No. 905983
 
                      :
 
            CUSTOM WOODWORKS, LTD.,  :   A R B I T R A T I O N
 
                      :
 
                 Employer, :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            HARTFORD INSURANCE COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant awarded 23 percent industrial disability based on 
 
            ten percent functional impairment ratings; medical 
 
            restriction of no lifting of more than 25 pounds; prior work 
 
            history and training.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RICK JAHN,                    :                                 
 
                                          :     File No. 905983             
 
                 Claimant,                :                                 
 
                                          :
 
            vs.                           :      R E V I E W -
 
                                          :
 
            BURKE ENGINEERING and,        :     R E O P E N I N G
 
            CUSTOM WOODWORKS, LTD.,       :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE GROUP,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding commenced by Ricky L. Jahn against 
 
            his former employer and its insurance carrier seeking 
 
            payment of medical expenses totaling $5,252.89 which were 
 
            incurred after the prior hearing was conducted in this case 
 
            on October 16, 1990.
 
            
 
                 The disputed issue is whether the expenses are causally 
 
            connected to the December 16, 1988 injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The arbitration decision indicates that Jahn underwent 
 
            diskectomy surgery on January 19, 1989, at the L4-5 level of 
 
            his spine and that the surgery was performed by Thorir S. 
 
            Ragnarsson, M.D., a neurosurgeon.  A few weeks following the 
 
            surgery Jahn developed low back pain in the left side of his 
 
            back.  The previously most symptomatic problem had been on 
 
            the right.  Tests showed a bulging disc at the L4-5 level on 
 
            the left and centrally.  Claimant was eventually released to 
 
            return to work and did so.
 
            
 
                 Despite efforts to accommodate claimant's activity 
 
            restrictions, he experienced a recurrence of back pain and 
 
            changed jobs.  As indicated in the fifth paragraph on page 
 
            five of the arbitration decision, it was noted that claimant 
 
            was still suffering from some disc abnormality.  This would 
 
            be expected in view of the nature of the injury and the 
 
            surgical procedure which was performed.  It is well 
 
            recognized that back surgery commonly produces less than 
 
            perfect results.  The most severe symptoms are often 
 
            alleviated but it is quite common for residual symptoms of 
 
            some degree to remain.  It is not at all uncommon to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            experience some degree of recurrence of the original 
 
            symptoms or other problems at the injured level of the 
 
            spine.
 
            
 
                 Jahn had some recurrence of symptoms in 1990 but it was 
 
            transitory.  Symptoms again recurred in late 1991.  It was 
 
            at that point that he entered into the course of medical 
 
            care which is the subject of this proceeding.
 
            
 
                 Jahn was initially seen by Robert M. Stewart, M.D., a 
 
            specialist in internal medicine who employs claimant's 
 
            spouse and provides some family practice-type of services to 
 
            claimant's family because of that relationship.  Dr. Stewart 
 
            has reported that the pain claimant described was probably 
 
            related to his spine.  (exhibit 36)
 
            
 
                 Claimant was then referred to his treating 
 
            neurosurgeon, Dr. Ragnarsson.  Initially, Dr. Ragnarsson 
 
            indicated that the symptoms were not related to the prior 
 
            injury.  (exs. 25 and 26)   As the course of care and 
 
            treatment progressed, Dr. Ragnarsson then began to suspect 
 
            that there was some relationship.  (ex. 26 and 28)  After 
 
            the diagnostic tests had been completed and epidural flood 
 
            treatment provided relief, Dr. Ragnarsson then indicated 
 
            that he felt the symptoms were related to claimant's back, 
 
            possibly a radicular irritation.  (exs. 29 and 30)
 
            
 
                 Quintin J. Durward, M.D., another neurosurgeon in the 
 
            same office as Dr. Ragnarsson, issued a specific report 
 
            stating that claimant's symptoms were most likely related to 
 
            the work accident of December 16, 1988, and that the 
 
            treatment rendered by Dr. Ragnarsson was reasonable and was 
 
            likewise related to the December 16, 1988 work injury.  (ex. 
 
            33)
 
            
 
                 Claimant was evaluated by Robert R. Sundell, M.D., an 
 
            Omaha neurologist, on February 26, 1983.  (ex. 40)  Dr. 
 
            Sundell expresses the opinion that claimant's symptoms and 
 
            care had no relationship to the 1988 injury.  He stated that 
 
            claimant had not had an aggravation of the previous 
 
            condition.  Dr. Sundell offered no explanation or theory for 
 
            the source of claimant's symptoms or for the care which is 
 
            the subject of this case.  Accordingly, his assessment is 
 
            difficult to accept.
 
            
 
                 The claimant's appearance and demeanor was observed as 
 
            he testified at hearing.  When considered together with the 
 
            other evidence in the case, it is found that Rick L. Jahn is 
 
            a fully credible witness on his own behalf.  His denial of 
 
            any intervening trauma having produced the symptoms which 
 
            are the subject of this dispute is accepted as being 
 
            correct.  He is industrious and is now self-employed, having 
 
            left Eagle Window and Door in August 1991.
 
            
 
                 The bills claimant incurred in treating these symptoms 
 
            are found in exhibits 45, 46, 47, and 48.  They total as 
 
            follows:
 
            
 
                 Marion Health Center                    $4,366.50
 
                 St. Luke's                                 202.39
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Anesthesia Consultants                     288.00
 
                 Sioux City Neurology Neurosurger           396.00
 
            
 
                                          Total          $5,252.89
 
            
 
                 In accordance with the stipulations made by the parties 
 
            in the hearing report and by the evidence from Dr. Durward, 
 
            those services are causally connected to claimant's original 
 
            work injury, the treatment rendered was reasonable, and the 
 
            charges for the treatment are likewise reasonable.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the symptoms and medical care on which this claim 
 
            is based.  A cause is proximate if it is a substantial 
 
            factor in bringing about the result; it need not be the only 
 
            cause.  A preponderance of the evidence exists when the 
 
            causal connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            medical expenses.  The weight to be given to any expert 
 
            opinion is determined by the finder of fact and may be 
 
            affected by the accuracy of the facts relied upon by the 
 
            expert as well as other surrounding circumstances.  The 
 
            expert opinion may be accepted or rejected, in whole or in 
 
            part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
            1974)2; Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 In this case there are two choices presented by the 
 
            expert medical evidence regarding the cause for claimant's 
 
            back symptoms which led to the expenses that are the subject 
 
            of this dispute. Either they were caused by the injury to 
 
            his spine which occurred in 1988 or the symptoms have some 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            unidentified cause.  The burden of proof is probability.  As 
 
            simply stated, the evidence in this case shows it to be more 
 
            likely than not that the symptoms and care were proximately 
 
            caused by the original injury in 1988.  The continuing 
 
            residual or recurrent symptoms are not unusual.  The 
 
            evidence of this case fails to suggest any other possible 
 
            source for the claimant's symptoms.  Extensive diagnostic 
 
            testing has been conducted.  Claimant responded favorably to 
 
            the treatment that was provided.  These are all indicators 
 
            that the 1988 injury is the source of the symptoms which led 
 
            to the medical care which is the subject of this case.
 
            
 
                 It is therefore concluded that the claimant has proven 
 
            by a preponderance of the evidence that the December 16, 
 
            1988 injury is a proximate cause of the symptoms and care 
 
            which led to the expenses which are the subject matter of 
 
            this case.  Defendants are therefore liable for payment of 
 
            those expenses in the total amount of $5,252.89.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered that defendants pay the 
 
            following expenses:
 
            
 
                 Marion Helath Center                    $4,366.50
 
                 St. Luke's                                 202.39
 
                 Anesthesia Consultants                     288.00
 
                 Sioux City Neurology Neurosurgery          396.00
 
            
 
                                          Total          $5,252.89
 
            
 
                 To the extent the expenses are unpaid, they shall be 
 
            paid directly by defendants to the provider.  To the extent 
 
            they have been paid by claimant or any other party on 
 
            claimant's behalf, that amount shall be paid to the 
 
            claimant.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants in the amount of one hundred 
 
            fifteen dollars ($115).
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            Copies To: 
 
            
 
            Mr Timothy A Clausen
 
            Attorney at Law
 
            PO Box 327
 
            Sioux City IA 51102
 
            
 
            Mr James M Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Bldg
 
            PO Box 1828
 
            Sioux City IA 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2501 1402.60
 
                                            Filed February 2, 1994
 
                                            Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICK JAHN,                    :
 
                                          :     File No. 905983
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      R E V I E W -
 
                                          :
 
            BURKE ENGINEERING and,        :     R E O P E N I N G
 
            CUSTOM WOODWORKS, LTD.,       :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE GROUP,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2501 1402.60
 
            Claimant proved by a preponderance of the evidence that his 
 
            subsequently incurred medical expenses were proximately 
 
            caused by the original injury.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                     :
 
         RILEY J. DRAKE,       :
 
                     :
 
              Claimant,   :
 
                     :
 
         vs.         :
 
                     :        File No. 906136
 
         THE WALDINGER CORPORATION,      :
 
                     :          A P P E A L
 
              Employer,   :
 
                     :        D E C I S I O N
 
         and         :
 
                     :
 
         EMPLOYERS MUTUAL COMPANIES,     :
 
                     :
 
              Insurance Carrier,    :
 
              Defendants.      :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 26, 1991 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         An apportionment of claimant's prior disability is not necessary.  
 
         Claimant's prior condition appears to have been latent.  Claimant 
 
         had no restrictions, he had missed only a small amount of time as 
 
         a result of his prior injuries, and the injuries were many years 
 
         prior to his current injury.  Claimant was able to perform the 
 
         duties of his job without adverse effect from his prior injuries.
 
         In addition, the record is sufficient to differentiate between 
 
         the physical impairment attributable to this injury, and 
 
         claimant's prior injuries.  Although Dr. Boulden did not 
 
         distinguish between claimant's injuries in his rating of 
 
         impairment, Dr. Bashara did assign separate ratings for 
 
         claimant's prior injuries and his current injury.  The award of 
 
         disability is based only on the impairment resulting from the 
 
         injury that is the subject of this action.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Avenue
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         Des Moines, Iowa 50309
 
         
 
         Mr. D. Brian Scieszinski
 
         Attorney at Law
 
         801 Grand Ave., Ste 3700
 
         Des Moines, Iowa 50309-2727
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed January 26, 2993
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            RILEY J. DRAKE,       :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 906136
 
            THE WALDINGER CORPORATION,      :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            EMPLOYERS MUTUAL COMPANIES,     :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed July 26, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RILEY J. DRAKE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 906136
 
            THE WALDINGER CORPORATION,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on July 11, 1991, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            November 28, 1988.  The record in the proceedings consist of 
 
            the testimony of claimant, claimant's wife, Rebeccah Buch 
 
            and Roger Marquardt; joint exhibits 1 through 17; and 
 
            defendants' exhibit A2.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged healing period and/or 
 
            permanent disability is causally connected to his November 
 
            28, 1988 work injury; and
 
            
 
                 2.  The extent of claimant's industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 41-year-old high school graduate who has 
 
            a B.A. degree from Upper Iowa University in elementary 
 
            education with a certificate to teach grades kindergarten 
 
            through sixth.  Claimant did not obtain his B.A. degree 
 
            until December 1990 nor his state teaching certificate until 
 
            January 1991.  Claimant had quit Mankato State University in 
 
            1971 or 1972 with 15 credit hours until graduation and did 
 
            not complete the required hours until he started in 1987 
 
            with night classes to eventually complete his degree.
 
            
 
                 Claimant came to Des Moines in 1973 to learn the sheet 
 
            metal trade.  He started as an apprentice and after one year 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            he has worked as a journeyman in this business up to his 
 
            November 28, 1988 injury.
 
            
 
                 Claimant basically worked out of the union hall in 
 
            which case the employer would call the hall and the union 
 
            worker would be deployed to the particular job.
 
            
 
                 On November 28, 1988, claimant was working for 
 
            Waldinger assembling duct work with a subspecialty of 
 
            welding.  He was fitting together a 250 to 300 pound square 
 
            extension ten feet long with another apprentice worker.  As 
 
            they lifted this piece waist high, claimant felt a crunch in 
 
            his back.
 
            
 
                 Claimant said he initially felt a strong pain in his 
 
            right buttock and right side and calf and some numbness.  He 
 
            worked through his 10:00 a.m. coffee break but the pain 
 
            became worse and claimant said he could not straighten up 
 
            and became limp.  He went to the shop foreman and filled out 
 
            an accident report.  Another apprentice then took him to the 
 
            Iowa Methodist Medical Center.
 
            
 
                 Claimant was off three days and upon his return to work 
 
            on a Thursday he was groggy from medicine and stooping and 
 
            bending were major problems.  He related he ran out of pain 
 
            killers and the pain returned.  Claimant indicated the 
 
            clinic said not to return to work.  They set up an 
 
            appointment with David J. Boarini, M.D.
 
            
 
                 Claimant said the doctor wanted to do surgery for an 
 
            L4-5 herniated disc which showed through a CT scan that the 
 
            doctor ordered.  This conclusion was after claimant went to 
 
            physical therapy and work hardening for six to eight weeks.
 
            
 
                 Claimant requested a second opinion and defendant 
 
            employer set up an appointment with William R. Boulden, 
 
            M.D., who prescribed an MRI and wanted to do his own 
 
            physical therapy system including a work hardening program 
 
            (Joint Exhibit 12, page 60).  This first visit with Dr. 
 
            Boulden was on February 23, 1989.  Dr. Boulden's therapy 
 
            system was different.  This physical therapy lasted six 
 
            weeks and claimant said the doctor indicated to him that he 
 
            should return to some type of work in a career other than 
 
            construction.
 
            
 
                 Claimant was released to return to work on April 10, 
 
            1989, with 30 pound frequent lifting restriction and not to 
 
            exceed 70 pounds, no twisting or bending at the waist, 
 
            especially while holding any weight.  He was to stay away 
 
            from 50 to 70 pounds.  Claimant testified Dr. Boulden 
 
            released him to light duty work.
 
            
 
                 Claimant said he has called and visited with defendant 
 
            employer before his April 10, 1989 release as to work and 
 
            when he tried to come back upon his release, defendant 
 
            employer had no light duty work.  Claimant contends 
 
            defendant employer was busy and had no out-of-state people 
 
            on the payroll thereby indicating that he could have been 
 
            called back if the employer wanted him.  Claimant said he 
 
            checked with the union hall for jobs.  He was out of work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            from April 10, 1989 to May 1990, when he got a job again 
 
            with defendant employer.
 
            
 
                 Claimant related he filed an unemployment insurance 
 
            claim in January 1990 which defendant employer contested.  
 
            His first benefits began in March 1990.
 
            
 
                 When claimant went back to work for defendant employer 
 
            in March 1990 at light duty work, which he described, he 
 
            worked about three and one-half months before being laid 
 
            off.  Claimant said no one else got laid off and the union 
 
            hall had full employment.  He emphasized that defendant 
 
            employer still had the light duty special customer job work 
 
            to do.  He indicated John Deere had a special piece work 
 
            order that defendant employer was working on.
 
            
 
                 Claimant then went back to Dr. Boulden.  He said he 
 
            felt like he would like surgery because of his problems but 
 
            the doctor did not think surgery should be done.
 
            
 
                 Claimant started night classes again after December 10, 
 
            1988 at Upper Iowa University.  Claimant said he always 
 
            wanted to get a degree and others agreed under the 
 
            circumstances that it was a good idea to finish his degree 
 
            in elementary education.  Claimant emphasized he could have 
 
            gone to work if the employer would hire him from April 1989 
 
            to May 1990 and still have gone to school as he was going to 
 
            school prior to 1988 at night and experienced no conflicts.  
 
            He indicated his night school was 6:00 to 10:00 p.m. in the 
 
            evening.  Claimant said he worked in November and December 
 
            1990 and January 1991 for defendant employer doing 
 
            insulation, which claimant described.  It is the lightest of 
 
            all work.  Claimant said he and one other were laid off in 
 
            January 1991 as the customer's special order was completed.  
 
            Claimant emphasized he checked the union hall again for 
 
            jobs.
 
            
 
                 Claimant's next job after his January 1991 layoff was 
 
            with National Sheet Metal in March 1991.  Claimant again was 
 
            the sole  person laid off after he worked there three weeks.  
 
            Claimant obtained another sheet metal job June 26 or 28, 
 
            1991, and is currently working there, putting in defusers.  
 
            He said this is light duty and he can perform this type of 
 
            work.
 
            
 
                 Claimant said he has mailed out resumes for a teaching 
 
            job in a 40 mile radius of Des Moines, including Des Moines.  
 
            He has not been successful as to full time job but has done 
 
            a little substitute teaching at $60 per day with no 
 
            benefits.  He indicated he sent out more resumes in June 
 
            1991 and has had no responses.
 
            
 
                 Claimant related his current problems which consist of 
 
            a dull throbbing ache in his buttocks and right calf, 
 
            aggravation caused by sitting, lying on the couch, twisting 
 
            or bending at the waist.  He said dancing, bike riding, 
 
            riding in a boat and fishing also aggravates his back.  He 
 
            now can't ride two miles versus twenty-five miles he rode 
 
            before his injury.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant emphasized that he cannot do general sheet 
 
            metal work with his current restrictions.  He said the ducts 
 
            weigh in excess of 200 pounds.  Claimant referred to Joint 
 
            Exhibit 12, page 64, a September 20, 1990 report in which 
 
            the doctor recommended claimant find a different job than 
 
            sheet metal work or he may become a surgical candidate.  
 
            Claimant agreed with the doctor's recommendation that he 
 
            should find another occupation.
 
            
 
                 Claimant went to Jerome G. Bashara, M.D., who had all 
 
            of claimant's medical history concerning his back (Jt. Ex. 
 
            14, p. 83).  This doctor agreed that claimant should get out 
 
            of the labor type occupation.
 
            
 
                 Claimant's top hourly wage in the sheet metal business 
 
            was $16.38 as of November 28, 1988, plus fringe benefits 
 
            including medical benefits and pension.  He has no medical 
 
            coverage now of his own as he has not worked sufficient 
 
            hours in the sheet metal business to keep it up.  Claimant 
 
            currently is making the normal average hourly sheet metal 
 
            union wage.  Claimant said entry level school teachers make 
 
            $18,500.  He indicated it takes ten years to get top grade 
 
            teacher's pay with a Masters ($27,000 per year).  He 
 
            emphasized he would like to stay in sheet metal work as it 
 
            is better paying and he has 18 years of experience.
 
            
 
                 Claimant related his pre-November 28, 1988 medical 
 
            problems.  It appears the severe headaches still continues 
 
            at times today.  It appears he is still having some shoulder 
 
            and neck pains.  He said he had some low back pain in 
 
            October 1982 and received treatment.  He was released by the 
 
            doctor but was still sore.
 
            
 
                 In November 1985, he injured his back carrying a pane 
 
            of glass.  He indicated his back would get stiff and sore 
 
            from this incident as of November 28, 1988.  He said he did 
 
            not file a workers' compensation claim as it did not affect 
 
            his work.
 
            
 
                 Claimant acknowledged he went to the doctor for a 
 
            muscle relaxant prescription for his back on November 25, 
 
            1988, which was the Friday before his Monday, November 28, 
 
            1988 work injury.  Claimant emphasized his 1985 back pain 
 
            was around his belt line or above whereas the 1988 low back 
 
            pain was below the belt line on the right side and into the 
 
            calf and buttocks.  Claimant acknowledged his attorney 
 
            arranged for Dr. Bashara's examination and got Roger 
 
            Marquardt, a rehabilitation expert, involved in this case.  
 
            Claimant agreed no one has suggested surgery today.  
 
            Notwithstanding any other reference in the medical, the 
 
            parties agreed that Dr. Boulden's April 10, 1989 release of 
 
            claimant to work is the correct date as to claimant reaching 
 
            maximum healing.  Claimant admitted he did not look for work 
 
            until Dr. Boulden released him.
 
            
 
                 Claimant agreed he isn't guaranteed a job as a sheet 
 
            metal worker and that there are layoffs two or three times a 
 
            year plus occasional strikes.  His top salary as a sheet 
 
            metal worker was $28,000 per year.  He agreed that if one 
 
            took his hours to arrive at his pay in 1984 and 1985 as a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            sheet metal worker, his income would have been between 
 
            $20,000 and $25,000 per year.
 
            
 
                 On cross-examination, claimant answered that defendant 
 
            would hire him back if there was a light duty job defendant 
 
            had within his restrictions and if claimant was released as 
 
            a full-time sheet metal worker.  It is obvious this answer 
 
            surprised claimant's counsel.  After a break, the question 
 
            and answer was read back and on redirect examination, 
 
            claimant answer was changed to a "no."  When asked why the 
 
            change in his answers, claimant said that defendants had not 
 
            hired him back to date.   He indicated that this is true 
 
            because he understood when defendant employer called and 
 
            asked about the claimant, the employer indicated they did 
 
            not want to take a chance of claimant injuring himself.  In 
 
            this area of questions and the answers, the testimony was 
 
            confusing and the questions and answers were requested to be 
 
            read back by the undersigned and the parties' attorney.
 
            
 
                 It appears to the undersigned that claimant believes he 
 
            was not hired as he was laid off due to his injury and the 
 
            nature of his condition and the fear by the employer that 
 
            claimant would injure himself again.
 
            
 
                 Claimant said he sought jobs himself and did not solely 
 
            wait for hiring out of the union hall.
 
            
 
                 Claimant was questioned quite extensively as to what he 
 
            told the doctors, if anything, as to his November 25, 1988 
 
            doctor appointment.  It was apparent he orally told them 
 
            nothing but contends the doctors had his medical records.
 
            
 
                 Roger Marquardt, a vocational rehabilitation 
 
            specialist, testified in person and said he did an 
 
            evaluation on claimant on January 8, 1991, at claimant's 
 
            attorney's request.  His report is Joint Exhibit 6.  He 
 
            opined claimant could return to work as a sheet metal worker 
 
            to certain select unique jobs as claimant could not do the 
 
            majority of sheet metal jobs.  He emphasized claimant should 
 
            not continue in sheet metal work unless light duty can be 
 
            available on a consistent basis.  He understands such light 
 
            duty sheet metal work cannot be consistently available.  He 
 
            said claimant's sheet metal skills are not transferable to 
 
            other construction jobs since those other jobs require 
 
            similar physical demands.
 
            
 
                 He related claimant had a 100 percent access to his 
 
            field of expertise prior to November 28, 1988.  He indicated 
 
            claimant lost his physical ability to do heavy and medium 
 
            work but can do light work and sedentary work in the sheet 
 
            metal field.  Marquardt opined that claimant lost 40 to 45 
 
            percent of his work ability in his field.  He said claimant 
 
            lost his sheet metal skills due to the injury and replaced 
 
            them with his teaching degree.  He opined claimant has 41 
 
            percent wage loss because of his injury.
 
            
 
                 He indicated elementary teacher positions are few and 
 
            far between and one must be ready to relocate.  He said Iowa 
 
            is not a fertile field presently.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Marquardt said his review of the medical records do not 
 
            indicate any restrictions resulting from any pre-November 
 
            28, 1988 injury.  He related $18,950 is the Des Moines 
 
            teaching entry level and $31,975 is the Des Moines average 
 
            wage but it takes eight years to get to the higher average.  
 
            He said claimant's highest pay as a sheet metal worker was 
 
            $28,000.
 
            
 
                 Joint Exhibit 6, pages 22-26, is a January 15, 1991 
 
            vocational evaluation report of Roger Marquardt.  This 
 
            supplements his testimony given at hearing.  In his report, 
 
            he indicated that sheet metal work would cause undue stress 
 
            to claimant's low back and must be avoided.  He also 
 
            indicated that the jobs to which claimant would transfer his 
 
            sheet metal skills would require similar physical demands 
 
            (Jt. Ex. 6, p. 24).  Marquardt agreed with claimant pursuing 
 
            a teacher's career but indicated claimant would need to 
 
            adjust to a 41 percent loss of earnings when he begins 
 
            teaching compared to his present occupation.
 
            
 
                 Donna Drake, claimant's wife, testified the things 
 
            claimant can't do now that he could do prior to November 28, 
 
            1988.  She said no injury happened over the Thanksgiving 
 
            holiday.  She emphasized that claimant saw the doctor on 
 
            November 25, 1988, because he was out of medicine.  She 
 
            understood that the doctor only prescribed medicine for so 
 
            long and claimant would then have to see the doctor again to 
 
            okay a refill.  She said claimant felt good the morning of 
 
            November 28, 1988, when he went to work.
 
            
 
                 Rebeccah Buch, the personnel administrator for 
 
            defendant employer for several years, knows claimant.  She 
 
            thinks claimant is a satisfactory worker and knows no reason 
 
            why they would not hire claimant again if he did not have 
 
            restrictions.  She related her understanding of claimant's 
 
            restrictions.  She set out claimant's layoffs and rehiring 
 
            history with defendant employer.  She indicated claimant's 
 
            layoff from light duty in August 1990 was due to a lot of 
 
            big jobs ending around that time, but she stated that only 
 
            one other person was laid off at that time.  It is obvious 
 
            from her testimony that defendant employer wants someone who 
 
            can do all the types of jobs rather than one, namely, light 
 
            duty.  She said she did not know if the management told Ron 
 
            Masters, a union representative, that they would not hire 
 
            claimant because he may get hurt.
 
            
 
                 Ron Masters, business manager of the Sheet Metal 
 
            Workers Local 45, testified by way of his deposition on July 
 
            8, 1991, that he has been a member of Local 45 for 26 years, 
 
            business manager since July 1, 1989, and president from 1980 
 
            through 1989.  He related his duties as a business manager 
 
            which is a full-time job and operates out of the union hall.  
 
            He said there are 13 contractors in the union's bargaining 
 
            unit.  He explained the hall's hiring process.  He said 
 
            there are layoffs from time to time and generally the person 
 
            laid off goes back to work for the same contractor when 
 
            business picks up again and the employer notifies the hall 
 
            that they want a worker.  Masters said he is familiar with 
 
            the hiring process and knows the claimant.  He also 
 
            indicated that he worked with claimant in 1983 on two 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            separate occasions which encompassed approximately three 
 
            months.  He related that claimant helped out on several 
 
            things and is always a contributor of his time.  Masters was 
 
            asked about and discussed the various records which are used 
 
            in determining one's pension plan, contribution rates, etc., 
 
            so that when one is ready to retire, they can follow up.  
 
            Masters indicated that as of 1991, $4.63 per hour is paid in 
 
            fringes over and above the hourly rate out of which 20 cents 
 
            per hour represents the amount contributed to the pension 
 
            fund.  He indicated that from time to time where there is 
 
            not work in the Des Moines area, the Des Moines worker can 
 
            go work for a contractor in another state or for a traveling 
 
            kind of contractor who travels from state to state doing 
 
            sheet metal work.
 
            
 
                 Masters related that claimant tried to get work from 
 
            time to time since his layoff in July 1990 by appearing in 
 
            the union hall regularly and checking to see if there was 
 
            work available.  He said it is tough to place a person who 
 
            has light duty restrictions as he is not mobile within the 
 
            work force and he cannot be placed easily (Jt. Ex. 4, p. 
 
            21).  Masters also related an occasion in May 1991 where an 
 
            individual who usually calls for hiring purposes inquired as 
 
            to a worker Masters had on the list.  He indicated this 
 
            other individual asked about the claimant and if he was 
 
            still on restrictions.  Masters said he told him he was and 
 
            the caller indicated he would hate to have claimant hurt 
 
            himself because they didn't have light duty at the time or 
 
            medium duty and they were getting geared up for a Cargill 
 
            and Maytag shutdown which is pretty heavy duty work (Jt. Ex. 
 
            4, p. 22).  Masters indicated that if it weren't for the 
 
            understanding of claimant's medical circumstances, he would 
 
            have had a good chance of working at that time.  Masters 
 
            indicated that it is the contractor who may desire to employ 
 
            a certain person and that seniority does not control that 
 
            except in apprenticeship.  He also indicated that a worker 
 
            does not have the right to retain a job once they are 
 
            employed beyond a certain period with a contractor.  He said 
 
            the current top rate is $22.04 per hour, total package, with 
 
            a taxable rate of $17.35 per hour, the difference being the 
 
            fringe benefits.  Masters indicated that the bargaining 
 
            contract has increased from time to time over the period of 
 
            years that he has been involved with the union.  Masters 
 
            indicated that claimant has restrictions from the doctor of 
 
            light or medium duty work but indicated that claimant told 
 
            him that he feels recovered and he can do the sheet metal 
 
            work in any branch of the trade (Jt. Ex. 4, p. 30).  Masters 
 
            said he did not know of any jobs where the claimant has 
 
            turned down work offered to him since 1990 when the doctor 
 
            would have released him back to work except for traveling 
 
            out of town.  Masters said that when a contractor calls and 
 
            doesn't name any one specifically, the person that he sends 
 
            out first on his list is the one that has been off work the 
 
            longest and if that person is passed over by the contractor, 
 
            this person on the top of the list still stays at the top.  
 
            He said that for the year 1990, the union had full 
 
            employment from April to approximately November.  Masters 
 
            was asked why there was a gap in claimant's employment 
 
            between July and December 1990.  Masters said that 
 
            claimant's light duty limitation during that time prevented 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            him from getting work when the others worked.
 
            
 
                 Claimant's medical records on November 23, 1976 through 
 
            November 2, 1982 (Jt. Ex. 7, pp. 27-33; Jt. Ex. 7A, pp. 33A-
 
            33D) reflect claimant's neck, shoulder and back problems 
 
            which basically involved pain, tightness all in the neck 
 
            area or between the shoulder blades.  Page 34 reflects 
 
            claimant's first apparent low back problem resulting from 
 
            pushing a car (Jt. Ex. 8, p. 34) on November 2, 1982.
 
            
 
                 Claimant had a recurrence of a back problem on October 
 
            22, 1985, while lifting a large pane of glass (Jt. Ex. 9, 
 
            pp. 36-40).  He was still getting treatment and pain 
 
            prescription on March 25, 1987 (Jt. Ex. 9, p. 39) and on 
 
            November 25, 1988 (Jt. Ex. 9, p. 40) for the low back 
 
            discomfort.  This page shows a date of January 25, 1988, but 
 
            from the testimony and other records it appears one number 
 
            has been cut off when duplicated and that is, in fact, the 
 
            November 25, 1988.
 
            
 
                 Joint Exhibit 10, page 1 reflects claimant went to the 
 
            outpatient department of Iowa Methodist Medical Center at 
 
            9:30 a.m. on November 28, 1988, with complaints of possible 
 
            low back injury pain radiating down the right leg.
 
            
 
                 On December 21, 1988, claimant was evaluated at Iowa 
 
            Methodist Medical Center with low back pain and possible 
 
            disc injury.  Claimant had therapy and a work hardening 
 
            program was recommended.
 
            
 
                 The parties agreed that the claimant reached maximum 
 
            healing on April 10, 1989, but Dr. Boulden said claimant 
 
            needed vocational rehabilitation because he could not return 
 
            to his exact job description (heavy duty work) (Jt. Ex. 12, 
 
            pp. 61-62).  Dr. Boulden opined claimant had a 10 percent 
 
            disability of his spine based on two levels of degenerating 
 
            disc.  On September 25, 1990, Dr. Boulden said claimant is 
 
            not a good candidate to return back to his employment and 
 
            approved claimant getting involved more in his speciality of 
 
            teaching (Jt. Ex. 12, p. 64).  He saw no need for claimant 
 
            to have surgery.
 
            
 
                 Claimant was classified into a medium/heavy work 
 
            classification defined as lifting 70 pounds maximally or 
 
            infrequently and 35 pounds on a repetitive basis a floor to 
 
            waist measured position (Jt. Ex. 13, p. 78A).  It did not 
 
            appear that these restrictions were ever changed.
 
            
 
                 Although Dr. Boarini, on February 8, 1989, indicated a 
 
            CT scan showed an L5-S1 herniated disc on the right (Jt. Ex. 
 
            11, p. 59), Dr. Boulden said he could not determine for sure 
 
            due to the poor quality of x-ray (Jt. Ex. 12, p. 60).  He 
 
            ordered an MRI which showed a significant degenerative disc 
 
            disease with no impingement and also degeneration at L4,5 on 
 
            March 14, 1989.  He felt claimant did not get an appropriate 
 
            work conditioning program and recommended another one (Jt. 
 
            Ex. 12, p. 61A).
 
            
 
                 Claimant was sent to Dr. Bashara by his attorney.  Dr. 
 
            Bashara issued a report on September 28, 1990, in which he 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            opined claimant had a 17 percent permanent impairment to the 
 
            body as a whole related to his back, of which 8 percent was 
 
            causally connected to claimant's November 28, 1988 injury 
 
            involving the fourth and fifth discs and 9 percent was 
 
            related to claimant's preexisting degenerative disc 
 
            condition at L1-2.  This is the first doctor to opine causal 
 
            connection as to any impairment or injury even though one 
 
            could infer from all the other medical evidence that there 
 
            was some causal connection of at least some of claimant's 
 
            disability and impairment to a November 28, 1988 work 
 
            injury.
 
            
 
                 It is surprising that no other doctor was asked or 
 
            commented as to the causal connection question on follow-up 
 
            considering the nature of this case and the purpose for 
 
            which they were treating the claimant.
 
            
 
                 Dr. Boulden opined a 10 percent impairment but did not 
 
            specifically relate it to an incident, injury or a 
 
            preexisting condition in whole or in part.
 
            
 
                 Claimant went to a doctor on November 25, 1988 for a 
 
            back problem.  This was a Friday and claimant's November 28, 
 
            1988 injury occurred around 9:30 a.m. on the following 
 
            Monday.  Claimant contends that the Friday appointment was 
 
            solely to renew a prescription and not because claimant was 
 
            having problems.  If claimant wasn't having problems, why 
 
            get medicine?  The undersigned finds that claimant had a 
 
            preexisting degenerative back condition that has bothered 
 
            claimant for years.  Claimant's doctor opined claimant had a 
 
            preexisting condition.  He did not say whether claimant's 
 
            November 28, 1988 injury aggravated the preexisting 
 
            condition, either slightly, materially or substantially.  
 
            Being claimant's doctor, the undersigned believes he would 
 
            have noted this if claimant's current problems are solely 
 
            the result of a November 28, 1988 injury.  Claimant was 
 
            having back problems before the November 28, 1988 incident.  
 
            Defendants raised a question as to whether the doctors knew 
 
            of the November 28, 1988 doctor visit.  It appears Dr. 
 
            Bashara did from the records he obtained (Jt. Ex. 14, p. 
 
            82).  Claimant downplayed his November 25, 1988 incident as 
 
            a result of a long car ride.
 
            
 
                 It is a close issue as to what caused claimant's 
 
            current problems in total as he worked very little before 
 
            his incident on November 28, 1988.  Defendants agree 
 
            claimant incurred a work injury on November 28, 1988.  
 
            Therefore, one must determine whether a preexisting 
 
            condition or a November 28, 1988 work injury caused 
 
            claimant's current problems, in total, or each, in part, nor 
 
            not at all.
 
            
 
                 The undersigned finds the greater weight of medical 
 
            evidence shows claimant incurred a work injury on November 
 
            28, 1988, causing an 8 percent permanent impairment to his 
 
            body as a whole and that claimant had a 9 percent permanent 
 
            impairment to his body as a whole prior to November 28, 
 
            1988.  It is also found that claimant's preexisting 
 
            impairment existed prior to November 28, 1988, and prior to 
 
            November 25, 1988, so that no injury occurred on November 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            25, 1988, but claimant's appointment that day was the result 
 
            of claimant's preexisting impairment.
 
            
 
                 It is undisputed that claimant had no restrictions 
 
            prior to November 28, 1988 and began working in the morning 
 
            of November 28, 1988.  There is no evidence claimant came to 
 
            work that morning hampered by a preexisting condition or 
 
            unable to work or having work restrictions.  Claimant has 
 
            work restrictions now that severely prevent him from doing 
 
            all or having 100 percent access to the jobs he had done 
 
            prior to November 28, 1988.  Claimant can do some light duty 
 
            and medium to heavy duty work.   It is obvious claimant is 
 
            affected by his restrictions in heavy duty stressful sheet 
 
            metal construction work.
 
            
 
                 The doctors recommended claimant leave the sheet metal 
 
            industry for his own health and physical well-being and 
 
            continue now in his teaching career.  It is undisputed 
 
            claimant can teach, if he can find a job.  He will need to 
 
            relocate.  Claimant is presently working on a sheet metal 
 
            job in light duty work.  How long that will last is 
 
            questionable.  Claimant's sheet metal skills which he has 
 
            acquired over approximately 18 years are not transferable to 
 
            jobs that are any less physical than his sheet metal work.  
 
            The undersigned finds claimant has a loss of earning 
 
            capacity caused by his November 28, 1988 injury.  He has 
 
            lost income and even with ultimate success in obtaining a 
 
            teaching job, he will have a substantial loss of income 
 
            which most likely will occur for several years compared with 
 
            his seniority and experience and fringe benefits as a sheet 
 
            metal worker.  As a vocational rehabilitation expert has 
 
            indicated, claimant would have to work eight years to reach 
 
            the average rate status as a teacher.  Mr. Marquardt agreed 
 
            claimant will need to adjust to a 41 percent loss of income 
 
            when he begins teaching compared to his present occupation.
 
            
 
                 The undersigned finds claimant's loss of income and the 
 
            loss of earning capacity are the result of claimant's 
 
            November 28, 1988 injury and it is this injury that totally 
 
            causes claimant's loss.  Claimant had none of these losses 
 
            prior to November 28, 1988, notwithstanding his preexisting 
 
            impairment.  The undersigned also refers to the case of 
 
            Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991).
 
            
 
                 Claimant is 41 years of age and is basically foreclosed 
 
            to a future normal employment in the construction industry 
 
            in which he can use his sheet metal skills and 18 years 
 
            experience.  Claimant is motivated.  He had already started 
 
            chipping away at a teaching degree and this injury enabled 
 
            him to obtain it sooner than he would have otherwise.  
 
            Finding a full-time job has been difficult.  The doctors 
 
            have recommended claimant pursue a career other than the 
 
            sheet metal construction field.
 
            
 
                 The undersigned must decide this case on the current 
 
            situation.  Taking into consideration claimant's age, 
 
            education, pre-medical and post-medical history, 
 
            impairments, restrictions, motivation, income and all other 
 
            criteria used to determine industrial disability, the 
 
            undersigned finds claimant has incurred a 40 percent 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            industrial disability as a result of claimant's November 28, 
 
            1988 work injury, said benefits to begin April 11, 1989.
 
            
 
                 The parties agreed claimant was off work December 1, 
 
            1988 through April 10, 1989, encompassing 18.143 weeks.  
 
            Since causal connection has been found, the undersigned 
 
            finds claimant is entitled to 18.143 weeks of healing period 
 
            benefits at the stipulated rate of $370.81.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            28, 1989, 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).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            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 he had done 
 
            prior to November 28, 1988, and, consequently, has relegated 
 
            claimant to a medium to heavy duty or light duty work within 
 
            the industry.
 
            
 
                 Claimant had a preexisting permanent impairment to his 
 
            body as a whole of 9 percent resulting from a degenerative 
 
            disc at L1-2 which preexisted claimant's November 28, 1988 
 
            injury, but that said impairment did not result in 
 
            claimant's current restrictions nor did claimant have work 
 
            restrictions prior to November 28, 1988 or prior to November 
 
            25, 1988.
 
            
 
                 Claimant has a disc herniation at L4-5 that was caused 
 
            by claimant's November 28, 1988 injury and that surgery has 
 
            not been recommended at this time.
 
            
 
                 Claimant has suffered a substantial loss of income and 
 
            a substantial loss of earning capacity as a result of his 
 
            November 28, 1988 work injury.
 
            
 
                 Claimant incurred a healing period beginning December 
 
            1, 1988 through April 10, 1989, encompassing 18.143 weeks, 
 
            which was caused by claimant's November 28, 1988 work injury 
 
            which is payable at the rate of $370.81 per week.
 
            
 
                 Claimant incurred a 40 percent industrial disability as 
 
            a result of his November 28, 1988 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the weekly rate of three hundred seventy and 
 
            81/100 dollars ($370.81) for the period beginning December 
 
            1, 1988 through April 10, 1989, encompassing eighteen point 
 
            one four three (18.143) weeks.
 
            
 
                 That defendants shall pay unto claimant two hundred 
 
            (200) weeks of permanent partial disability benefits at the 
 
            weekly rate of three hundred seventy and 81/100 dollars 
 
            ($370.81) beginning April 11, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            Mr Arthur C Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines IA 50309
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 5-1108
 
                      Filed July 26, 1991
 
                      Bernard J. O'Malley
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RILEY J. DRAKE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 906136
 
            THE WALDINGER CORPORATION,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-1108
 
            Forty-one year old claimant awarded 40% industrial 
 
            disability.  Claimant's restrictions foreclosed his prior 
 
            100% access to sheet metal work he has done for 18 years.  
 
            Claimant is now limited to light duty or medium to heavy 
 
            duty work which limits his being hired.  The doctor 
 
            suggested he go into his second career (teaching).  He 
 
            obtained his certificate in 1991 but has been unable to find 
 
            a job.  A vocational rehabilitation specialist who agrees 
 
            that claimant should go into teaching opined claimant has a 
 
            41% loss of income.
 
            
 
            5-1108
 
            Causal connection found.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1801.1; 1803; 1806
 
                           Filed May 21, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CARL C. PETERSON,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File Nos. 906408
 
                      :                   933308
 
            JOHN MORRELL & CO., :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            NATIONAL UNION FIRE :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1801.1
 
            It was held that temporary partial disability is a 
 
            substitute for healing period and that the same events which 
 
            end healing period also terminate temporary partial 
 
            disability entitlement.  Compensation for permanent partial 
 
            disability held payable commencing at the end of the 
 
            temporary partial disability entitlement where the temporary 
 
            partial disability entitlement was ended by a full-time 
 
            return to work despite the fact that further recuperation 
 
            might have occurred subsequently.
 
            
 
            1803; 1806
 
            Claimant found to have 12 percent permanent partial 
 
            disability which under section 85.34(2)(s) entitled him to 
 
            60 weeks of compensation based on bilateral carpal tunnel 
 
            syndrome and surgery.  The claimant had previously been paid 
 
            9 1/2 weeks of permanent partial disability under an 
 
            agreement for settlement affecting one of his hands.  Such 
 
            was held a sufficient basis for apportionment.  Claimant 
 
            awarded 50.5 additional weeks after deducting the 9.5 weeks 
 
            previously paid in another case from the 60-week total 
 
            disability entitlement which currently existed.