Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TERRANCE D. VOSBERG,          :
 
                                          :
 
                 Claimant,                :        File No. 906860
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            A. Y. McDONALD,               :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            STATEMENT OF THE CASE
 
            Defendant appeals from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on January 8, 1989.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding, 
 
            and joint exhibits 1 through 12.  Both parties filed briefs 
 
            on appeal.
 
            ISSUES
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.
 
            Defendant states the issues as:
 
            
 
                 I.  Whether substantial evidence supports the 
 
                 finding that the claimant has a 60% industrial 
 
                 disability.
 
            
 
                 II.  Whether substantial evidence supports the 
 
                 finding that the healing benefit period ran 
 
                 through September 22, 1989.
 
            
 
                 Claimant states the issues on cross-appeal as:
 
            
 
                 I.  The finding of the hearing officer that 
 
                 claimant has a 60% industrial disability is 
 
                 supported by substantial evidence.
 
            
 
                 II.  Healing period benefits should have been 
 
                 awarded from January 8, 1989, through January 11, 
 
                 1990.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed September 14, 1990 are adopted as final 
 
            agency action.
 
            CONCLUSIONS OF LAW
 
            Claimant's proper healing period is an issue on appeal.  R. 
 
            Scott Cairns, M.D., predicted that claimant's permanent 
 
            condition might not be known until a year after the injury 
 
            of January 8, 1989.  Claimant's condition continued to 
 
            change after April 1, 1989, as noted in Dr. Cairns' reports.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Although claimant last saw Dr. Cairns on January 11, 1990, 
 
            Dr. Cairns stated in his deposition that claimant's 
 
            condition stabilized and further improvement was not 
 
            expected after November 7, 1989.  (Joint exhibit 1, page 
 
            36.)  Claimant's healing period ended on November 7, 1989.
 
            Claimant's industrial disability is the second issue on 
 
            appeal.  Claimant has shown good motivation to return to 
 
            work or find alternative work.  However, claimant's 
 
            instructions to the vocational rehabilitation worker to stop 
 
            looking for jobs for claimant has possibly increased his 
 
            disability through no fault of the employer.
 
             Claimant has not been rehired.  Defendant argued that a 
 
            union contract prevented defendant from rehiring claimant.  
 
            Normally an employer's refusal to rehire an injured worker 
 
            may increase a claimant's industrial disability.  McSpadden 
 
            v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  However, 
 
            this contemplates willful employer conduct that increases 
 
            the disability.  In this case, the record indicates that the 
 
            employer's refusal to rehire claimant was not the employer's 
 
            decision, but was mandated by a union contract.  It would be 
 
            unfair to penalize the employer for its compliance with a 
 
            binding contract.  The employer's failure to rehire claimant 
 
            in this case is not the kind of employer conduct envisioned 
 
            by McSpadden.
 
            The fact remains that claimant is still unemployed because 
 
            of the union contract.  Loss of earnings is a factor of 
 
            industrial disability.  Claimant has lost substantial 
 
            earnings and continues to do so as a result of his work 
 
            injury. 
 
            Claimant was 30 years old at the time of the hearing.  He 
 
            has a high school diploma.  Claimant has an impairment 
 
            rating of 10 percent.  Claimant's work activity is limited 
 
            to manual labor
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            jobs.  Based on these and all other factors of industrial 
 
            disability, claimant has an industrial disability of 35 
 
            percent.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendant shall pay unto claimant healing period 
 
            benefits at the rate of two hundred sixty-two and 16/100 
 
            dollars ($262.16) for the period beginning January 8, 1989 
 
            to and including November 7, 1990, which amounts to 
 
            ninety-five point five seven one (95.571) weeks.
 
            That defendant shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred sixty-two and 16/100 
 
            dollars ($262.16) beginning November 8, 1990.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.  The parties stipulated that 
 
            claimant has been paid eighty-four (84) weeks of benefits.
 
            That defendant shall pay interest on benefits awarded herein 
 
            as set forth in Iowa Code section 85.30.
 
            That defendant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
                 That defendant shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark J. Sullivan
 
            Attorney at Law
 
            P.O. Box 239
 
            Dubuque, Iowa 52001
 
            
 
            Mr. Les V. Reddick
 
            Attorney at Law
 
            200 CyCare Plaza
 
            Dubuque, Iowa 52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1802; 5-1803; 1803
 
            Filed February 27, 1992
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TERRANCE D. VOSBERG,          :
 
                                          :
 
                 Claimant,                :        File No. 906860
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            A. Y. McDONALD,               :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1802
 
            Claimant's healing period modified on appeal based on 
 
            physician's deposition statement.
 
            
 
            5-1803
 
            Claimant, 30 years old, high school diploma, 10 percent 
 
            impairment rating, work experience limited to manual labor, 
 
            not returned to work, awarded 35 percent industrial 
 
            disability.
 
            
 
            1803
 
            Claimant was not returned to work by employer due to 
 
            provision of a union contract.  Held that this would not 
 
            increase disability under McSpadden, but fact that claimant 
 
            was presently unemployed still represented a substantial 
 
            loss of earnings, a factor of industrial disability. 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
                                          :
 
            TERRANCE D. VOSBERG,          :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 906860
 
            vs.                           :
 
                                          :
 
            A. Y. McDONALD,               :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            as a result of an injury occurring on January 8, 1989.  The 
 
            record in the proceedings consist of the testimony of 
 
            claimant, Arthur C. Winne, and Nancy Branson; and joint 
 
            exhibits 1 through 12
 
            
 
                                      issue
 
            
 
                 The issue for resolution is the nature and extent of 
 
            claimant's disability and entitlement to disability 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Claimant is a 30-year-old high school graduate.  
 
            Claimant's job history was basically in unskilled labor type 
 
            jobs until he began employment with defendant employer in 
 
            October 1978 as an entry level machinist.  Claimant went 
 
            into the navy in 1979 to 1982 and the last year and a half 
 
            of his navy enlistment he was an electrical systems 
 
            maintainer.  This electrical expertise left no real skills 
 
            outside the navy in the electrical industry.  After his navy 
 
            stint, claimant then returned to defendant employer in 1982 
 
            and worked there until his January 8, 1989 injury.
 
            
 
                 Claimant was a union member and eventually was promoted 
 
            to a millwright.  Claimant explained the duties of a 
 
            millwright and the skills required.  At the time of his 
 
            injury, claimant was making $10.45 per hour.  Claimant 
 
            related he was in good health before January 8, 1989 and had 
 
            never treated for back problems nor had he any restrictions.  
 
            The record in evidence supports claimant on this point and 
 
            the undersigned so finds.
 
            
 
                 Claimant said he golfed, went snowmobiling, hunted 
 
            (including deer hunting, which involved climbing in trees), 
 
            fished (including ice fishing, which required sitting on a 
 
            bucket on the ice), water skied, and drove an all terrain 
 
            vehicle.  Claimant is not able to do any of these activities 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            now or, if able, he is limited.  He has attempted some of 
 
            these activities but has discontinued them basically because 
 
            of the discomfort of pain that it caused him due to his 
 
            January 1989 injury.
 
            
 
                 Claimant was injured at work on January 8, 1989 while 
 
            lifting and repairing a machine which weighed approximately 
 
            100 pounds.  While lifting this machine with the help of 
 
            another individual, claimant experienced a sharp pain in his 
 
            low back and dropped the weight and was unable to continue 
 
            working.  Claimant then saw the company doctor, Luke Faber, 
 
            M.D.  Dr. Faber took no x-rays but prescribed some medicine 
 
            and ordered physical therapy.  Claimant said this treatment 
 
            did not help.  Shortly thereafter, the unimproved claimant 
 
            saw Faber on January 13, 1989 because claimant's back was 
 
            worse and the therapy to date was not helping that much.
 
            
 
                 Claimant said Dr. Faber then released him to return to 
 
            work and did not think any further treatment was necessary.  
 
            Claimant was not able to return to work on January 15, 1989 
 
            because his back was worse than the week before.  Claimant 
 
            was unable to bend over.  On January 16, 1989, Dr. Faber 
 
            referred claimant to R. Scott Cairns, M.D., an orthopedic 
 
            surgeon, who took x-rays and eventually performed a CT scan 
 
            and a bone scan.  The bone scan showed a herniated disc in 
 
            the low back.  Claimant was then put through a four week 
 
            conservative physical therapy course several times per week 
 
            which also involves certain exercises, massage and heat.  
 
            Claimant said it did not help other than relieve pain at the 
 
            particular moment.  Claimant called defendant employer 
 
            regarding returning to work in the spring of 1989 and 
 
            defendant employer, through Arthur Winne, said "no" due to 
 
            claimant's restrictions.
 
            
 
                 On May 25, 1989, Dr. Cairns requested a second CT scan 
 
            which indicated again that claimant had a herniated disc 
 
            larger than before at the L5-S1 area.  Dr. Cairns at that 
 
            time was not in favor of surgery.
 
            
 
                 In the fall of 1989, claimant concluded he could 
 
            potentially generate the same amount of income in the Amway 
 
            business as he did at defendant employer so he started 
 
            attending seminars and building up his and his wife's Amway 
 
            business by recruiting others under them.  It appeared 
 
            claimant and his wife were already in this Amway business in 
 
            a very limited capacity at the time of claimant's injury in 
 
            order to generate some additional side income to live a 
 
            better lifestyle.  Claimant began full-time with his Amway 
 
            business working 50 hours per week, beginning January 1, 
 
            1990.  Claimant also had a satellite television system 
 
            business on the side in which he sold satellite dishes and 
 
            installed them.  He had started this satellite business in 
 
            1988.  Claimant said his satellite dish business has 
 
            deteriorated due to his 1989 injury as he cannot do the 
 
            installing which required physical work, digging, lifting 
 
            and pouring concrete.  Claimant said he had a six month 
 
            period after his injury in which he was unable to do 
 
            anything in his satellite business.  Claimant's 1988 income 
 
            tax return shows approximately a $1,000 loss in his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            satellite business and in 1989 his tax return shows a $48 
 
            profit.  Neither return shows any Amway income.  Claimant 
 
            said his income in 1990 with Amway is $4,000 and $3,000 in 
 
            his television satellite business.  Claimant said there is 
 
            no lifting required concerning the Amway products as people 
 
            picked them up themselves at his house.
 
            
 
                 Claimant said if he were offered a position with 
 
            defendant employer now, he would consider it.  He has never 
 
            been offered a job nor did the rehabilitation consultant, 
 
            Nancy Bronson, find him a job.  She only suggested jobs he 
 
            might seek, many which paid less than defendant employer 
 
            paid.
 
            
 
                 Arthur Winne, vice president and long time human 
 
            resource personnel for defendant employer, said claimant was 
 
            a very good employee and would highly recommend him.  He 
 
            said there are certain union restrictions as to certain jobs 
 
            and pay and indicated it is hard to return claimant to 
 
            another job.
 
            
 
                 This employer apparently uses this as an excuse not to 
 
            be able to return claimant to work but does not acknowledge 
 
            that these rules and contract restrictions were in place 
 
            before the injury and the injury did not create these 
 
            contract restrictions.  Claimant's injury only triggered the 
 
            rules to which the employer and employees through their 
 
            negotiations had agreed which conditions mutually affected 
 
            the employment profit and wage situation of the parties.
 
            
 
                 It was of interest to the undersigned when the employer 
 
            emphasized that the door is forever closed to this claimant.  
 
            Mr. Winne said "defendant employer's situation prohibits 
 
            claimant's return to another job at defendant employer" and 
 
            "it isn't possible to offer an office or supervisory 
 
            position and none was ever offered and it is not likely one 
 
            would be available."
 
            
 
                 Defendant employer did okay the retaining of a 
 
            rehabilitation specialist, Nancy Branson, whose first 
 
            contact with claimant was in August 1989.  She only 
 
            concluded, "That it is apparent that he is capable of 
 
            substantial gainful activity in either sedentary or light 
 
            work."  (Joint Exhibit 11, page 3)  She listed several areas 
 
            of potential jobs claimant's past history and skills would 
 
            indicate he could do.  It is interesting to note that this 
 
            rehabilitation specialist did not attempt to or have any 
 
            actual real life employment opportunity for this claimant.  
 
            It is one thing to theorize through a dictionary of 
 
            occupational titles and to have an actual job itself.  There 
 
            is no evidence any of these types of jobs ever existed in 
 
            the area let alone whether a job vacancy existed.  The 
 
            estimated wage varied from $3.85 to $11.75, in her opinion.
 
            
 
                 Ms. Branson emphasized her goal was not to return 
 
            claimant to defendant employer because Mr. Winne told her 
 
            that claimant's return to work for A. Y. McDonald was not 
 
            possible due to the union contract.  Ms. Branson also 
 
            expressed difficulty in obtaining Dr. Cairns' report as to 
 
            claimant's restrictions.  She said she had actually closed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's file in 1989 when she finally received 
 
            information from the doctor in May of 1990, at which time 
 
            she updated the report (Jt. Ex. 11).  She indicated she had 
 
            called several times for the doctor to send a signed report.  
 
            Ms. Branson had prepared a resume and planned for the 
 
            claimant in 1989, but this was held up because of Dr. 
 
            Cairns, a company authorized doctor, delaying his report 
 
            until May of 1990 as to claimant's medical restrictions.  
 
            This medical doctor's delay seems unexcusable.  The 
 
            undersigned was surprised at Ms. Branson's unfamiliarity 
 
            with how any employer requires an employee to fill out an 
 
            employment application and the effect a herniated disc in 
 
            one's back may have on an employer's attitude.  Ms. Branson 
 
            did agree the best jobs for claimant as far as income is 
 
            concerned would be those involving heavy duty and heavy 
 
            lifting.  She acknowledged claimant is trying to capitalize 
 
            on his Amway business skills because of his inability to 
 
            work at the more physical jobs because of his 1989 injury.
 
            
 
                 R. Scott Cairns, M.D., an orthopedic surgeon, testified 
 
            by way of deposition on January 31, 1990.  His first contact 
 
            with claimant was on January 16, 1989.  He requested a CT 
 
            scan shortly thereafter.  The CT scan showed a disc 
 
            herniation of L5-S1, left side.  He determined no surgery 
 
            should be done and prescribed conservative treatment which 
 
            included exercising.  He causally connected claimant's 
 
            herniated disc to his January 8, 1989 injury.
 
            Dr. Cairns' testimony versus his detailed work limitation 
 
            questionnaire is confusing (Jt. Ex. 1, p. 20-22; Jt. Ex. 3 
 
            and 4).  The doctor indicates claimant could lift between 21 
 
            and 25 pounds (Jt. Ex. 1, pp. 22-23).  The undersigned reads 
 
            joint exhibits 3 and 4 only one way, namely, claimant is 
 
            never to lift over 10 pounds.  These exhibits further 
 
            reflect claimant's notations.  Although one of these 
 
            limitation exhibits was filled out by claimant, the doctor 
 
            testified that he agreed with its contents and, in fact, 
 
            then eventually filled out his own and signed it.
 
            
 
                 It is difficult to determine from Dr. Cairns' testimony 
 
            or any of the medical records when claimant reached maximum 
 
            healing period.  In May 1989, it appeared claimant's 
 
            herniation was enlarging on the left side.  The undersigned 
 
            finds that claimant's slipping episode that occurred on 
 
            April 21, 1989 (Jt. Ex. 1, p. 15) which appears to have 
 
            aggravated claimant's injury, was caused by claimant's 
 
            medical condition resulting from the January 8, 1989 injury 
 
            and was not a new or additional injury nor a substantial or 
 
            material aggravation of claimant's January 8, 1989 injury.  
 
            The undersigned also finds that at this point claimant was 
 
            still healing.
 
            
 
                 The undersigned finds that claimant reached maximum 
 
            healing period on September 22, 1989 (Jt. Ex. 1, p. 20), as 
 
            it appears claimant's condition was no longer changing and 
 
            apparently had stabilized.
 
            
 
                 Dr. Cairns opined claimant has a 10 percent impairment 
 
            to his body as a whole (Jt. Ex. 1, p. 30).  The doctor said 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant would have a difficult time passing job related 
 
            physicals.  Dr. Cairns still ruled out surgery.
 
            
 
                 Claimant made $25,565.64 while working for defendant 
 
            employer in 1987, $22,938.00 in 1988, and $1,837.74 in 1989.  
 
            The parties are fighting over the extent of any healing 
 
            period and the extent of claimant's permanent disability.  
 
            Claimant's hope is that since he is unable to work in jobs 
 
            requiring the type of physical work he was doing at the time 
 
            of his injury, his work with his Amway business can 
 
            hopefully earn him as much money as he earned at defendant 
 
            employer.  This is a highly motivated goal, but obviously 
 
            from the record he is far from reaching it at this time and 
 
            it will take considerable effort.  The undersigned is not 
 
            going to speculate as to whether claimant will reach that 
 
            goal.  The undersigned must take the circumstances as they 
 
            exist at this time.  It is obvious claimant is motivated and 
 
            a hard worker as he had a satellite business started while 
 
            he was working for defendant employer and it appears he and 
 
            his wife were also beginning selling Amway products.  There 
 
            is no evidence claimant ever intended to give up his main 
 
            job and occupation until he was injured.
 
            
 
                 There is no dispute as to this accident arising out of 
 
            and in the course of claimant's employment nor the fact that 
 
            there is a causal connection to claimant's herniated disc 
 
            and his January 8, 1989 injury.  It is obvious the employer 
 
            has completely closed the door of ever hiring claimant 
 
            again.  They seem to blame the union contract on this 
 
            problem.  As indicated earlier, the injury did not cause the 
 
            union contract provisions to come into existence as the 
 
            contract was in existence on the date of injury and its 
 
            terms were further effectuated, as a result of claimant's 
 
            injury at work.  Just because of his injury does not mean 
 
            the employer or the employee can violate a negotiated 
 
            contract.  The employer was satisfied with this contract at 
 
            the time of claimant's injury and cannot now blame the 
 
            contract for any effect the injury may have had on claimant 
 
            or employer.
 
            
 
                 Claimant has a substantial loss of income and also a 
 
            substantial loss of earning capacity.  Claimant has a wide 
 
            range of jobs which he cannot do because of this injury.  
 
            Claimant has substantial limiting restrictions placed on him 
 
            by Dr. Cairns.
 
            
 
                 Taking into consideration those criteria in determining 
 
            industrial disability such as, but not necessarily limited 
 
            to, claimant's age, motivation, education, impairment, 
 
            employer's refusal to give claimant work after the injury, 
 
            location, severity of the injury, healing period, and lack 
 
            of prior injuries, the undersigned finds claimant has a 60 
 
            percent industrial disability.
 
            
 
                 The undersigned finds claimant has incurred a healing 
 
            period beginning January 8, 1989 to and including September 
 
            22, 1989, totaling 36.857 weeks.
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant has a 60 percent loss of earning 
 
            capacity, which results in a 60 percent industrial 
 
            disability.
 
            
 
                 That claimant incurred a healing period beginning 
 
            January 8, 1989 to and including September 22, 1989, which 
 
            amounts to 36.857 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred sixty-two and 16/100 
 
            dollars ($262.16) for the period beginning January 8, 1989 
 
            to and including September 22, 1989, which amounts to 
 
            thirty-six point eight five seven (36.857) weeks.
 
            
 
                 That defendants shall pay unto claimant three hundred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (300) weeks of permanent partial disability benefits at the 
 
            rate of two hundred sixty-two and 16/100 dollars ($262.16) 
 
            beginning September 23, 1989.
 
            
 
                 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 stipulated 
 
            that claimant has been paid eight-four (84) weeks of 
 
            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 Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of September, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Mark J Sullivan
 
            Attorney at Law
 
            Fischer Bldg  Ste 222
 
            P O Box 239
 
            Dubuque IA 52001
 
            
 
            Mr Les V Reddick
 
            Attorney at Law
 
            200 Cycare Plaza
 
            Dubuque IA 52001
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51804; 1807
 
                                          Filed September 14, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
                                          :
 
            TERRANCE D. VOSBERG,          :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 906860
 
            vs.                           :
 
                                          :
 
            A. Y. McDONALD,               :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            _________________________________________________________
 
            
 
            51804
 
            Found claimant incurred a 60% industrial disability.
 
            
 
            1807
 
            Employer contends union contract terms prevented employer 
 
            from allowing claimant to return to work.  Found claimant 
 
            used this as an excuse, but did not acknowledge that the 
 
            rules and contract restrictions were in place before the 
 
            injury and the injury did not create the contract 
 
            restrictions.  The injury only triggered the rules to which 
 
            the employer and employee through negotiations had agreed, 
 
            which conditions mutually affected the employment, profit 
 
            and wage situation of the parties.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TERRANCE D. VOSBERG,          :
 
                                          :        File No. 906860
 
                 Claimant,                :
 
                                          :           O R D E R
 
            vs.                           :
 
                                          :            N U N C
 
            A. Y. McDONALD,               :
 
                                          :             P R O
 
                 Employer,                :
 
                 Self-Insured,            :            T U N C
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            The appeal decision filed February 27, 1992 contained a 
 
            typographical error.  The order of the appeal decision is 
 
            amended to read as follows:
 
            That defendant shall pay unto claimant healing period 
 
            benefits at the rate of two hundred sixty-two and 16/100 
 
            dollars ($262.16) for the period beginning January 8, 1989 
 
            to and including November 7, 1989, which amounts to 
 
            forty-three point four two nine (43.429) weeks. 
 
            Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark J. Sullivan
 
            Attorney at Law
 
            P.O. Box 239
 
            Dubuque, Iowa 52001
 
            
 
            Mr. Les V. Reddick
 
            Attorney at Law
 
            200 CyCare Plaza
 
            Dubuque, Iowa 52001
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA SANDER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 907045
 
            COMMUNICATIONS DATA SERVICE,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Patricia Sander, against her employer, 
 
            Communications Data Service, and its insurance carrier, The 
 
            Hartford, defendants.  The case was heard on May 22, 1990, 
 
            in Davenport, Iowa.  The record consists of the testimony of 
 
            claimant and the testimony of Cheryl Thomsen, Mary Morrison 
 
            and Laura Meyer.   The record also consists of claimant's 
 
            exhibit 2, pages 1, 4, 5, 6 & 7.  Also admitted as part of 
 
            the record were defendants' exhibits A-E.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of her employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and, 4) whether claimant is entitled to 
 
            medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was representing herself at the hearing.  
 
            Prior to the date of the hearing, she requested that her 
 
            then attorney, James R. Keele, be allowed to withdraw.  A 
 
            ruling on the application to withdraw was filed on May 14, 
 
            1990, by Deputy Industrial Commissioner Helenjean Walleser.
 
            
 
                 At the hearing claimant requested a continuance of the 
 
            proceedings.  Her oral motion was denied.  Also during 
 
            cross-examination claimant voluntarily left the proceedings, 
 
            returned and then left again.  She did not complete 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            cross-examination.  Nor was claimant present during the 
 
            testimonies of Mary Morrison and Cheryl Thomsen.
 
            
 
                 At the hearing claimant was vague in her description of 
 
            the alleged injury of October 18, 1988.  She indicated "she 
 
            felt pain" while working.  Claimant was assigned to load and 
 
            tend to a machine which placed inserts into envelopes.  She 
 
            worked at waist level while standing but was required to 
 
            carry envelopes and other paper supplies.  Claimant 
 
            indicated she had to stretch, lift and carry 50 to 60 
 
            pounds.  She attributed her pain to her repetitive 
 
            activities.
 
            
 
                 Under cross-examination claimant stated she first 
 
            sought medical care on October 28, 1988, when she saw Ben 
 
            Hanssen, D.C.  Dr. Hanssen's progress notes indicate 
 
            claimant saw him on November 7, 1988, but not on October 28, 
 
            1988.
 
            
 
                 Claimant was also seen for her back pain at the 
 
            Muscatine Health Center, P.C.  She was treated by David 
 
            Wettach, M.D.  Dr. Wettach released claimant to return to 
 
            work with defendant-employer as of December 6, 1988.  Dr. 
 
            Wettach, in his written release of that date, wrote:
 
            
 
                 Pat may continue sit-down work only with 
 
                 occasional standing or walking less than 5-min. at 
 
                 a time.  No lifting over 15 lbs.
 
            
 
                 Claimant did return to work but she only worked through 
 
            December 2, 1988.  She did not provide her work release.  
 
            Rather claimant telephoned her employer and informed Mary 
 
            Morrison that she  was unable to return to work.  Claimant 
 
            was paid benefits through December 31, 1988.  She was to 
 
            return to work on January 9, 1989, but she never again 
 
            appeared for work.
 
            
 
                 Claimant was referred to Leo Kulick, M.D., for her low 
 
            back pain by Dr. Wettach.  Dr. Kulick opined claimant had:
 
            
 
                 Advanced degenerative facet spondylosis of the lum
 
                 bosacral spine from L-3/4 thru L-5/S-l.  Most 
 
                 severe changes are present at L-4/5.  Associated 
 
                 changes consistent w/ DDD at L-4,5 and L-5/S-l.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            In his report of March 23, 1989, Dr. Kulick wrote:
 
            
 
                 Ms. Sander has been evaluated in the Orthopaedic 
 
                 Clinic at the Muscatine Health Center over three 
 
                 clinic visits on January 26, 1989, February 23, 
 
                 1989 and March 16, 1989.  She presented for 
 
                 evaluation of local mechanical lumbosacral pain, 
 
                 the onset of which she temporally related to the 
 
                 beginning of a new job as a machinist at CDS.  
 
                 Clinical evaluation indicates that symptoms derive 
 
                 from degenerative disc disease and degenerative 
 
                 spondylosis at multiple levels in the lumbosacral 
 
                 spine, primarily the caudal two motion segments.  
 
                 These findings are consistent with a chronic 
 
                 process which evolves over a long period of time.  
 
                 I have no doubt that Ms. Sander experiences 
 
                 disabling pain due to the changes in her 
 
                 lumbosacral spine when attempting to perform a job 
 
                 such as a machinist requiring prolonged standing 
 
                 or sitting under axial weight-bearing loads, but I 
 
                 cannot causaly [sic] relate the onset of her 
 
                 symptoms to employment at CDS.  Further, by 
 
                 history, Ms. Sander discontinued working at CDS of 
 
                 her volition in September, 1988 and was not 
 
                 initially evaluated by me until January 26, 1989.  
 
                 I cannot come to any conclusions regarding her 
 
                 functional status prior to that date.  I agree she 
 
                 should not return to the type of work required of 
 
                 her at CDS or similar occupations with physical 
 
                 requirements that stress the lumbosacral spine.
 
            
 
                 Since Ms. Sander has failed to improve on a 
 
            conservative therapeutic regimen and continues to have 
 
            difficulty with even sedentary activities, she has been 
 
            referred outside the clinic to be evaluated for further 
 
            potential therapeutic interventions.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on November 3, 
 
            1988, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 3, 
 
            1988, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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, 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 sur
 
            rounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Claimant has not proven by a preponderance of the 
 
            evidence that she has sustained an injury which arose out of 
 
            and in the course of her employment with defendant employer.
 
            
 
                 Claimant was vague in her description of the alleged 
 
            work injury.  Details were sketchy, at best.  Claimant was 
 
            not a convincing witness.  There were no witnesses to 
 
            corroborate her testimony, nor did any medical expert 
 
            support claimant's allegations.
 
            
 
                 Claimant was not credible.  She testified she had a 
 
            release for part-time work only from Dr. Kulick yet Dr. 
 
            Kulick's notes do not reflect the same.
 
            
 
                 Dr. Kulick did not causally relate claimant's condition 
 
            to her employment with defendant-employer.  Claimant has 
 
            failed to prove her case by a preponderance of the evidence.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Costs of this action shall be paid by each party 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Patricia K. Sander
 
            31 Coventry Lane #2
 
            Muscatine  IA  52761
 
            REGULAR & CERTIFIED MAIL
 
            
 
            Mr. Larry L. Shepler
 
            Attorney at Law
 
            Suite 102, Executive Sq
 
            400 Main St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1100
 
                                                    Filed July 24, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA SANDER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 907045
 
            COMMUNICATIONS DATA SERVICE,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1100
 
            Claimant did not prove by a preponderance of the evidence 
 
            that she sustained an injury which arose out of and in the 
 
            course of her employment.
 
            Claimant voluntarily removed herself from the proceedings 
 
            and refused to complete cross-examination by defendants' 
 
            attorney.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            APRIL D. MAINS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 907447
 
                                          :
 
            CLARINDA TREATMENT COMPLEX,   :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by April D. 
 
            Mains against her former employer, the Clarinda Treatment 
 
            Complex, based upon an alleged injury of January 11, 1989.  
 
            The primary issues to be determined are whether the claimant 
 
            sustained an injury which arose out of and in the course of 
 
            employment and determination of her entitlement to 
 
            compensation for healing period, permanent disability and 
 
            medical expense reimbursement based upon the alleged injury.
 
            
 
                 The case was heard at Council Bluffs, Iowa on April 18, 
 
            1991.  The evidence consists of testimony from April D. 
 
            Mains, Sharon K. Weaver, Wilma Brau and Rebecca Shilhanek.  
 
            The record also contains jointly offered exhibits 1 through 
 
            50.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 April D. Mains is a 39-year-old married lady who lives 
 
            at Sharpsburg, Iowa and who was previously employed at the 
 
            Clarinda Treatment Complex located at Clarinda, Iowa.  April 
 
            has two teen-age daughters.
 
            
 
                 April became a registered nurse in approximately July 
 
            1983 and commenced work at the Clarinda Treatment Complex in 
 
            August 1983.  Her initial assignment was as charge nurse in 
 
            a psychiatric unit for females.  According to April, she 
 
            enjoyed her job.
 
            
 
                 In September 1986, April injured her neck while in the 
 
            course of her employment.  The injury was subsequently 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            determined to be a ruptured cervical disc.  Surgery was 
 
            performed in early 1987.  April then returned to work in 
 
            September 1987 on the night shift with a restriction against 
 
            activities which presented a hazard of further injury to her 
 
            neck.  April was assigned to a drug and alcohol abuse unit 
 
            known as Pine Cottage where patients were normally held for 
 
            a 30-day program.  According to the evidence in the record, 
 
            April performed well in that job and had no significant 
 
            problems of any type.
 
            
 
                 In April 1988, April applied for a transfer to the day 
 
            shift.  She stated that she was emotionally stable at that 
 
            time.  April explained that she was taking courses in 
 
            business management and desired to work on the day shift in 
 
            order to facilitate her course work.  Becky Shilhanek, the 
 
            director of nursing, assigned April to the day shift, but 
 
            placed her in the unit known as Southwest Number 1, a 
 
            psychiatric unit for female patients who were nearly 
 
            prepared for discharge from the facility rather than the 
 
            Pine Cottage unit which April desired.
 
            
 
                 On approximately July 1, 1988, the Southwest Number 1 
 
            unit became a coed unit and the number of patients increased 
 
            from 6 or 8 up to 15 or 20.  The status of the patients was 
 
            unchanged.  The unit continued to be the one in which 
 
            patients resided immediately prior to their discharge from 
 
            the facility.  April considered the assignment to the 
 
            Southwest Number 1 unit to be a stressful assignment.  She 
 
            was concerned that psychiatric patients might need to be 
 
            physically restrained.  April felt that she had been 
 
            promised a day shift job at the Pine Cottage unit when she 
 
            made the transfer to the day shift and was upset by being 
 
            assigned to Southwest Number 1.
 
            
 
                 April complained that, while in Southwest Number 1, she 
 
            had to work with as many as 36 psychiatric patients.  She 
 
            complained of being unable to take breaks and of being 
 
            forced to work alone.  April also complained that she was 
 
            not included socially with the other registered nurses on 
 
            the day shift and did not feel accepted.  April's 
 
            performance evaluations became less favorable.  She 
 
            developed a practice of arriving late for work.  April was 
 
            eventually reprimanded.  In late fall or early winter of 
 
            1988, her supervisor had recommended that she seek 
 
            counseling through the Employee Assistance Program, but 
 
            April did not do so until December 1988.  On January 11, 
 
            1989, April was reprimanded for coming to work late.  At 
 
            that point, she broke down and requested sick leave.  She 
 
            consulted her family physician R. F. Wilker, M.D., who took 
 
            her off work and indicated that she had a work-related 
 
            stress disorder and emotional upset (exhibits 2 and 4).
 
            
 
                 Sharon Weaver, who was formerly employed at the 
 
            Clarinda Treatment Complex as a registered nurse, related 
 
            that she has had emotional problems as a result of the way 
 
            she was treated while working as a registered nurse at the 
 
            complex.  Weaver has known April for approximately six 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            years.  Sharon recalled that, in 1988, April was often upset 
 
            while she was at work.  April had indicated to Sharon that 
 
            she had too many patients to handle appropriately and other 
 
            problems at work.  Sharon recalled that April was at times 
 
            tearful and anxious, feeling that she was going to be 
 
            transferred back to the night shift.
 
            
 
                 Sharon related that, at times, she and April discussed 
 
            April's off-work problems, but that the problems did not 
 
            seem to be particularly great.  Sharon was not aware that 
 
            April's husband was an alcoholic or that he had physically 
 
            abused her.  Sharon was aware that April was unhappy with 
 
            her marriage.  Sharon agreed that living with an alcoholic 
 
            is very difficult, that it is a very significant stressor 
 
            and that families with an alcoholic often need outside help 
 
            in order to survive.  Sharon also agreed that spousal abuse 
 
            is very stressful.  Sharon related that, under some 
 
            circumstances, work can be a safe place in which a person 
 
            can escape from their other stresses.
 
            
 
                 Sharon considered work in the Southwest Number 1 unit 
 
            and in the Pine Cottage unit to be so non-stressful that it 
 
            was boring.  She felt that the Southwest Number 1 unit had a 
 
            relatively low level of stress for employees in comparison 
 
            to other units in the treatment complex.
 
            
 
                 Wilma Brau, a social worker, a coworker at the 
 
            treatment complex and a union official, was acquainted with 
 
            April since the mid-1980's.  Wilma related that she met with 
 
            April regarding problems at work in 1988 and that April was 
 
            upset and anxious.  Wilma related that April felt pressured 
 
            and harassed and displayed signs of depression.  Wilma felt 
 
            that most of April's problems were with her job.
 
            
 
                 Rebecca Shilhanek, director of nursing at the Clarinda 
 
            Treatment Complex, explained that Southwest Number 1 is 
 
            considered to be the least stressful unit in the hospital.  
 
            Rebecca related that April's performance had been adequate 
 
            until approximately September or October 1988 when changes 
 
            were observed.  April became deficient in her performance 
 
            with regard to preparing patient assessments, interacting 
 
            with patients and other duties.  In October, Rebecca 
 
            counseled April to seek assistance through the Employee 
 
            Assistance Program.  Rebecca stated that April's problems 
 
            with her husband being alcoholic and abusive were well known 
 
            and that April discussed leaving him.  As a result of the 
 
            deficiencies in April's performance, she was placed on a 
 
            30-day evaluation schedule.
 
            
 
                 April appeared to be making some progress in her 
 
            improvement as noted at the January 4 evaluation, but on 
 
            January 10, 1989, April was once again late for work.  A 
 
            written reprimand was issued.
 
            
 
                 April has not since returned to work, except for a 
 
            brief trial period which was not successful.  After a series 
 
            of unpaid leaves had been exhausted, her employment was 
 
            terminated.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 It is specifically found that work in the Southwest 
 
            Number 1 unit was not particularly stressful as indicated by 
 
            Sharon Weaver and Rebecca Shilhanek.  April's testimony to 
 
            the contrary is rejected.
 
            
 
                 On December 6, 1988, April saw William A. Smith, a 
 
            licensed social worker, through the Employee Assistance 
 
            Program offered by the employer.  In her meeting, she listed 
 
            a number of stressors including work, an abusive marriage, 
 
            the schooling she was attending and her teen-age daughters.  
 
            Smith reported that he was unable to determine whether work 
 
            was a primary cause of her emotional problems as opposed to 
 
            the cause being a combination of all the problems.  He went 
 
            on to state, "I suspect no small part of the problems [sic] 
 
            she is experiencing is a result of living in a chemically 
 
            abusive family and with a man who is physically abusive to 
 
            her."  (Exhibit 3).
 
            
 
                 After leaving work, April saw a number of physicians.  
 
            Her family physician, Dr. Wilker, referred her to David G. 
 
            Windsor, M.D., a psychiatrist.  Dr. Windsor diagnosed 
 
            claimant as having major depression, a substance abuse 
 
            disorder which was in remission and a mixed personality 
 
            disorder.  He raised questions regarding claimant seeking 
 
            secondary gain and a predisposition toward seeking secondary 
 
            gain due to her history of involvement with alcoholics 
 
            (exhibit 5).  On March 4, 1989, he reported that, from a 
 
            psychiatric standpoint, there was no reason why April could 
 
            not be competitively employed.  He questioned her motivation 
 
            (exhibit 6).
 
            
 
                 April also sought treatment from Kirpal Singh, M.D., a 
 
            psychiatrist.  His report dated April 27, 1989 diagnoses her 
 
            as having an adjustment disorder.  He does not express any 
 
            opinions regarding the cause of her problem.
 
            
 
                 April also sought treatment from psychiatrist Michael 
 
            L. Egger, M.D., who saw her in the time running from May 8 
 
            through August 17, 1989.  Dr. Egger reported that he advised 
 
            April that she could return to work effective June 12, 1989, 
 
            but her employment had already been terminated.  It was his 
 
            impression that she had a major depressive disorder which 
 
            was work related, but that at the time he last saw her, she 
 
            was free from symptoms (exhibit 13).
 
            
 
                 While under treatment with Dr. Egger, April was 
 
            evaluated by psychologist Mary Ann Strider, Ph.D.  Her 
 
            report which is dated July 7, 1989 contains the following 
 
            statement, "When asked about what was most stressful, she 
 
            began to talk a great deal about altercations with her 
 
            husband."  The report goes on to state that April was 
 
            presently separated from her husband and that she had called 
 
            the law in order to remove him because he was physically 
 
            abusive.  April revealed her husband's tendency towards 
 
            alcoholism and becoming angry.  The report also goes on to 
 
            conclude that Strider did not see "a significant stress 
 
            related disorder or post traumatic stress situation."  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            Strider felt that April had some underlying personality 
 
            factors and marital challenges which were highly 
 
            contributing to her situation.  Strider felt that April 
 
            needed psychiatric care [exhibit 15 (f)-(i)].
 
            
 
                 It is found that, while April D. Mains did experience a 
 
            major depressive episode which likely began in late 1988 and 
 
            became fully manifest when she left work on January 11, 
 
            1989, the evidence does not show the depression to have 
 
            resulted from stress at her place of employment.  To the 
 
            contrary, the evidence most strongly indicates that her 
 
            depressive disorder resulted from a combination of the 
 
            stresses to which she was subjected and that the primary 
 
            stress was her marital situation of living with a husband 
 
            who was an alcoholic and physically abusive.  When April's 
 
            personal stresses are considered in comparison to what has 
 
            been uniformly described by other witnesses as a 
 
            non-stressful work assignment, it is determined that April 
 
            Mains has failed to introduce evidence showing it to be 
 
            probable that the stresses she experienced in her employment 
 
            were a substantial factor in bringing about the depressive 
 
            episode which she experienced.  The opinion from Dr. Egger 
 
            which appears to relate the depressive disorder to work 
 
            stress is rejected in view of the assessments from 
 
            psychologist Strider, social worker Smith and psychiatrist 
 
            Windsor which indicate that work stress was not a primary 
 
            problem.  It is further noted that a close reading of Dr. 
 
            Egger's November 6, 1989 report, where he appears to state 
 
            an opinion that the condition was work related, can also be 
 
            interpreted as stating that it was his initial impression 
 
            that the disorder was work related without stating any final 
 
            opinion or assessment.  That paragraph of the report, 
 
            exhibit 13, states:
 
            
 
                 At the time of her first interview in May, she 
 
                 reported Dr. Singh had referred her, and I did 
 
                 receive subsequent letter from Dr. Windsor May 22, 
 
                 indicating she had disagreed with his perception 
 
                 of her goals.  It was my impression that she was 
 
                 suffering from symptoms of major depressive 
 
                 disorder, and that the disorder was work related.  
 
                 At the time of my last appointment she was, 
 
                 however, symptom free.
 
            
 
                 While there is no direct evidence in the record from 
 
            Dr. Windsor, April herself related that Dr. Windsor did not 
 
            feel that her condition was work related.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on January 11, 
 
            1989 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The words "arising out of" refer to the cause or source 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 When dealing with psychological injury which does not 
 
            result from trauma, the claimant must prove, by a 
 
            preponderance of the evidence, not only that the 
 
            psychological disorder resulted from work stress, but also 
 
            that the stress resulted from a situation of greater 
 
            dimensions that the day-to-day mental stresses and tensions 
 
            which all employees must experience.  Swiss Colony v. Dep't 
 
            of Indus., L. & H. R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976); 
 
            School Dist. #1 v. Dep't of Indus., L. & H. R., 62 Wis. 2d 
 
            370, 215 N.W.2d 373 (1974); Desgranges v. Dep't of Human 
 
            Services, file number 760747 (App. Decn., August 19, 1988).  
 
            The work must provide something more than the setting in 
 
            which the emotional disorder manifests itself.  Newman v. 
 
            John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 
 
            (Iowa 1985).
 
            
 
                 It is noted that work as a psychiatric nurse in a 
 
            psychiatric or substance abuse facility can be stressful 
 
            work.  It is also noted, however, that April was assigned to 
 
            work in what was probably the least stressful unit in the 
 
            facility.  The evidence does not support April's contention 
 
            that her work was particularly stressful.  To the contrary, 
 
            she appears to have performed well until late 1988.  On the 
 
            other hand, April was living in a family situation which 
 
            involved both alcohol abuse and physical abuse, a situation 
 
            which is normally quite stressful.  It is therefore 
 
            concluded that April has failed to prove, by a preponderance 
 
            of the evidence, that her depressive episode or any 
 
            emotional or psychological problem or disorder was 
 
            proximately caused by any stress to which she was subjected 
 
            as a result of her employment at the Clarinda Treatment 
 
            Complex.  She has failed to prove, by a preponderance of the 
 
            evidence, that she sustained any injury which arose out of 
 
            and in the course of her employment.  She is entitled to no 
 
            recovery.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30; 5-2204
 
                           Filed April 25, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            APRIL D. MAINS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 907447
 
                      :
 
            CLARINDA TREATMENT COMPLEX,   :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30; 5-2204
 
            Claimant failed to prove that depressive episode was caused 
 
            by work stress.  The evidence indicated it was more likely 
 
            associated with her family situation which involved an 
 
            alcoholic husband who physically abused her.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICK LEE HOPKINS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 907454
 
            STEVERS SANITATION, INC.,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            UNITED FIRE & CASUALTY,    
 
                        
 
                 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 December 8, 1993 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick Curran
 
            Attorney at Law
 
            P.O. Box 936
 
            Ottumwa, Iowa 52501
 
            
 
            Mr. John C. Stevens
 
            Attorney at Law
 
            122 E. 2nd St.
 
            Muscatine, Iowa 53761
 
            
 
 
            
 
 
 
 
 
                                              1402.40
 
                                              Filed April 27, 1994
 
                                              BYRON K. ORTON
 
                      
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICK LEE HOPKINS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 907454
 
            STEVERS SANITATION, INC.,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            UNITED FIRE & CASUALTY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1402.40
 
            Claimant's credibility was severely impaired.  As a result 
 
            thereof all medical histories given by him were considered 
 
            unreliable as were his descriptions of his symptoms.  The 
 
            net result was that claimant failed to recover any permanent 
 
            partial disability or any of the medical expenses which he 
 
            sought to have paid.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICK LEE HOPKINS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 907454
 
            STEVERS SANITATION, INC.,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Rick Lee 
 
            Hopkins against his former employer based upon a stipulated 
 
            injury of December 22, 1988.  The issues for determination 
 
            are the extent of claimant's entitlement to healing period 
 
            or temporary total disability, permanent partial disability 
 
            compensation, medical expenses and a vocational 
 
            rehabilitation benefit pursuant to section 85.70 of the 
 
            Code.
 
            
 
                 The case was heard at Des Moines, Iowa, on August 26, 
 
            1993.  The evidence consists of claimant's exhibits A, B, C, 
 
            D, E, and G and defendants' exhibits 1 through 8.  Exhibit 8 
 
            is the deposition of Robert Dallas Jones taken September 10, 
 
            1993.  The witnesses who testified at hearing are the 
 
            claimant, Matthew Rizzo, Karen Kurtz, William Sedor, James 
 
            L. Stogdill, D.C., Harry Stever, and William Catalona, M.D.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Rick Lee Hopkins is a 33-year-old man who lives at 
 
            Drakesville, Iowa.  The employer stipulated that he was 
 
            injured on December 22, 1988.  The incident of injury which 
 
            Hopkins described was that he was operating the employer's 
 
            garbage truck and that while pushing up on a dumpster a 
 
            chain holding it slipped and the dumpster fell, 
 
            approximately a foot, against his right shoulder and neck 
 
            area.  Hopkins has not resumed employment of any type or 
 
            nature since that incident.  The record does not show any 
 
            significant work search activity on his part.  
 
            
 
                 The record has a great amount of discrepancy regarding 
 
            what happened following that incident as far as what was 
 
            done with the truck which Hopkins was operating.  
 
            
 
                 Following the incident claimant eventually was seen by 
 
            Orthopedic Surgeon Donald D. Berg, M.D.  He has subsequently 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            received extensive medical care from a number of providers.  
 
            He has also been examined extensively.  The only anatomical 
 
            abnormality which has been discovered is a bulging disc in 
 
            his cervical spine.  Some of the physicians who have seen 
 
            him relate his continuing severe symptoms and complaints to 
 
            the bulging disc while others do not.  Claimant has received 
 
            conserative treatment for his complaints and cervical 
 
            epidural steroid injections.  
 
            
 
                 At the time of hearing more than four years had passed 
 
            since the date of the injury.  It was a seemingly minor 
 
            event, yet the claimant remains purportedly totally disabled 
 
            from all gainful employment.  It is found that the 
 
            claimant's description of his symptoms, complaints and of 
 
            what happened on December 22, 1988, is not reliable.  The 
 
            claimant's appearance and demeanor when he appeared at 
 
            hearing is a factor in making this determination.  It is 
 
            found that the assessment of the case made by Dr. Berg in 
 
            early 1989 is correct (exhibit E, deposition ex. 3).  
 
            Claimant was seen with symptoms on January 14, 1989, 
 
            approximately four weeks after the date of injury.  Dr. Berg 
 
            had him in therapy and indicated that he may need one to two 
 
            weeks off work before he could return.  Claimant never 
 
            returned to work.  He never returned to Dr. Berg until June 
 
            1989.  This is sufficient intervening time that any problems 
 
            or disability which currently exist cannot be attributed to 
 
            whatever it is that actually happened on December 22, 1988.  
 
            The fact that claimant sought no medical care for a period 
 
            of approximately five months is a strong indication that he 
 
            was not particularly symptomatic.  The care was then freely 
 
            available to him.  While there may have been a time at which 
 
            the defendant insurance carrier cut off medical care, that 
 
            time was long after January 1989.  James L. Stogdill, D.C., 
 
            who saw claimant on December 22, 1988, observed no signs of 
 
            recent acute trauma other than the claimant's complaints and 
 
            some tight muscles.  
 
            
 
                 As a result of the unreliability of the claimant's 
 
            testimony, the medical histories which he has given and the 
 
            description of his complaints are all found to be 
 
            unreliable.  The assessment made by the physicians should be 
 
            corroborated  by objective findings.  As indicated by 
 
            Doctors Rizzo and Catalona, there are no objective findings 
 
            present in this case which would warrant any award of 
 
            permanent disability.  
 
            
 
                 It is found that the record in this case fails to show 
 
            that it is probable that any complaints or treatment that 
 
            Rick Hopkins had subsequent to the end of January 1989 were 
 
            a result of the December 22, 1988 injury.  The only 
 
            consistent symptoms which has been observed by the 
 
            physicians is what might be described as a stiff neck.  A 
 
            stiff neck would not be something which should render a 
 
            person totally unemployable for a period of nearly five 
 
            years.  The undersigned is convinced that some force or 
 
            motivation is present in this case other than the results of 
 
            an injury.  As indicated by Robert D. Jones, the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            psychologist, psychological factors of some kind are likely 
 
            contributing to this claimant's complaints of pain and 
 
            disability.  There is nothing in the record which suggests 
 
            that those psychological factors were caused or 
 
            significantly aggravated by whatever injurious event 
 
            occurred on December 22, 1988.
 
            
 
                 The record fails to show it to be more likely than not 
 
            that any of the medical care which Rick Lee Hopkins received 
 
            subsequent to January 31, 1989 was rendered reasonable or 
 
            necessary as a result of the December 22, 1988 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. of 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 When an employee is disabled as a result of an injury, 
 
            the employee is entitled to recover weekly compensation for 
 
            temporary total disability or healing period until such time 
 
            as the employee has returned to work or becomes medically 
 
            capable of returning to employment substantially similar to 
 
            that in which the employee was engaged at the time of 
 
            injury.  If the injury caused some permanent disability the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            healing period may end at the time that significant 
 
            improvement from the injury is not anticipated. (Iowa Code 
 
            sections 85.33 and 85.34).  In this case it is found that by 
 
            the thirty-first day of January 1989, Rick Lee Hopkins had 
 
            recovered from the injury of December 22, 1988, as indicated 
 
            by the expectations in the records of Dr. Berg and as 
 
            indicated by the fact that he did not return to Dr. Berg.  
 
            He is therefore entitled to recover temporary total 
 
            disability compensation running from December 22, 1988 
 
            through January 31, 1989, a span of five and six-sevenths 
 
            weeks.  The stipulated rate of compensation in this case is 
 
            $224.74 per week.  It was further stipulated that the 
 
            claimant had been paid his salary from the date of injury 
 
            until January 15, 1989 and that he had been paid workers' 
 
            compensation benefits from January 16, 1989 through March 
 
            10, 1989, at the rate of $224.74.  Accordingly, Rick Lee 
 
            Hopkins has been paid all that the record in this case shows 
 
            that he is entitled to receive under the Iowa workers' 
 
            compensation laws.
 
            
 
                 The record in this case fails to show it to be probable 
 
            that the December 22, 1988 injury produced any permanent 
 
            disability of any nature whatsoever.  
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that he is entitled to any additional recovery 
 
            available under section 85.27 of the Code of Iowa.
 
            
 
                 Claimant seeks a vocational rehabilitation benefit.  In 
 
            view of the fact that the record has failed to prove that 
 
            any permanent disability resulted from the injury of 
 
            December 22, 1988, claimant has failed to prove an 
 
            entitlement to a vocational rehabilitation benefit under the 
 
            provisions of section 85.70 of the Code of Iowa.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the claimant.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Patrick Curran
 
            Attorney at Law
 
            419 Church st
 
            PO Box 936
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. John C. Stevens
 
            Attorney at Law
 
            122 E. 2nd St
 
            Muscatine, Iowa  53761
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
                                             1402.40
 
                                             Filed December 8, 1993
 
                                             Michael G. Trier
 
                      
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RICK LEE HOPKINS,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 907454
 
            STEVERS SANITATION, INC.,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            UNITED FIRE & CASUALTY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1402.40
 
            Claimant's credibility was severely impaired.  As a result 
 
            thereof all medical histories given by him were considered 
 
            unreliable as were his descriptions of his symptoms.  The 
 
            net result was that claimant failed to recover any permanent 
 
            partial disability or any of the medical expenses which he 
 
            sought to have paid.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                         :
 
         CHRIS NORMOYLE,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :      File No.  907588
 
         DAVENPORT AND SCOTT COUNTY YMCA,:
 
                                         :  A R B I T R A T I O N
 
              Employer,                  :
 
                                         :      D E C I S I O N
 
         and                             :
 
                                         :
 
         BITUMINOUS CASUALTY INSURANCE,  :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         INTRODUCTION
 
         This is a proceeding in arbitration brought by claimant, Chris 
 
         Normoyle, against Davenport and Scott County YMCA, employer and 
 
         Bituminous Casualty Insurance Company, insurance carrier, 
 
         defendants, to recover benefits under the Iowa Workers' Compensa
 
         tion Act for an alleged injury on January 12, 1989.  This matter 
 
         was scheduled to come on for hearing at 12:30 p.m. on August 3, 
 
         1990, at the Bicentennial Building, Scott County Department of 
 
         Health, in Davenport, Iowa.
 
         The undersigned was present.  Neither claimant nor defendants 
 
         appeared.
 
         summary of the evidence
 
         Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.  At the 
 
         time of the hearing, neither an agreement for settlement nor a 
 
         request for continuance was on file.
 
         Claimant has the burden of proving by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         findings of fact
 
         WHEREFORE, it is found:
 
         1.  Neither claimant nor defendants appeared at the scheduled 
 
         time and place of hearing.
 
         2.  The undersigned deputy industrial commissioner was present 
 
         and prepared to proceed to hearing.
 
         3.  At the time of the hearing, neither an agreement for 
 
         settlement nor a request for continuance was on file with the 
 
         industrial commissioner.
 
         4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable injury.
 
         order
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         THEREFORE, IT IS ORDERED:
 
         Claimant has failed to meet his burden of proof that he sustained 
 
         an injury which arose out of and in the course of his employment.
 
         Claimant take nothing from this hearing.
 
         Costs are taxed to the claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33
 
         
 
              Signed and filed this ____ day of August, 1990.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Peter Soble
 
         Attorney at Law
 
         500 Plaza Office Bldg.
 
         Rock Island, IL  61201
 
         
 
         Mr. John C. McAndrews
 
         Mr. Peter Fieweger
 
         Attorneys at Law
 
         200 Plaza Office Bldg
 
         Rock Island, IL  61204
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51400; 51402
 
                                          Filed August 3, 1990
 
                                          Walter R. McManus, Jr.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            CHRIS NORMOYLE,                 :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :      File No.  907588
 
            DAVENPORT AND SCOTT COUNTY YMCA,:
 
                                            :  A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :      D E C I S I O N
 
            and                             :
 
                                            :
 
            BITUMINOUS CASUALTY INSURANCE,  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            51400; 51402
 
            Neither claimant nor counsel appeared at the hearing.  No 
 
            evidence in support of allegations of a compensable work 
 
            injury was presented and claimant, therefore, failed to meet 
 
            his burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM J. KUHLE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 907602
 
            GEISLER BROTHERS CO.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE CINCINNATI INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 13, 1993, at 
 
            Dubuque, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an injury occurring on December 5, 
 
            1988.  The record in this proceeding consists of the 
 
            testimony of the claimant; joint exhibits 1 through 9; and 
 
            defendants' exhibits 1 and 2.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits;
 
            
 
                 2.  An 85.27 medical benefit issue, basically 
 
            claimant's entitlement to $490.50 for the alleged cost of 
 
            Advil (ibuprofen), and $472.29 for mileage, represented by 
 
            joint exhibit 6; and,
 
            
 
                 3.  Court costs shown on joint exhibit 7.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 34-year-old high school graduate.  
 
            Claimant related his post-high school history which in part 
 
            involved working as an assistant night manager at a Burger 
 
            King,then maintenance, pushing a broom and unloading 
 
            boxcars.  He indicated some of his work involved 
 
            refrigeration and lifting large tractor tires weighing 100 
 
            to 150 pounds, and helping in some sheet metal work.  
 
            Claimant had no trouble in these jobs nor any problems 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            lifting.
 
            
 
                 Claimant went into a three year sheet metal 
 
            apprenticeship program in September 1978.  His 
 
            apprenticeship program required three years of night school 
 
            going to classes six times a month four hours at a time.  He 
 
            testified that the sheet metal job required lifting 100 to 
 
            150 pounds at one time, depending on the job.  He indicated 
 
            he operated an air hammer only twice and indicated he could 
 
            not operate an air hammer now.
 
            
 
                 Claimant related a September 1984 incident wherein he 
 
            hurt his back.  Claimant indicated he recovered from this,  
 
            and that there was no residue from this injury and it will 
 
            not be further discussed.  Claimant related that from this 
 
            1984 incident up to December 5, 1988, he had no back pain or 
 
            numbness in his right leg.  Claimant also related a 1985 
 
            left knee surgery in which there was no residue or any issue 
 
            concerning the same in this case at bar.
 
            
 
                 Claimant related the many activities he participated in 
 
            prior to his December 5, 1988 injury.  Those activities 
 
            involved but not necessarily limited to rock climbing, cross 
 
            country skiing, hunting, fishing, snowmobiling, doing yard 
 
            work, gardening, etc.
 
            
 
                 Claimant related how he injured himself on December 5, 
 
            1988, while working for defendant employer and attempting to 
 
            pick up a four by eight foot louver.  Claimant went through 
 
            conservative treatment and a certain exercise program.  A Ct 
 
            scan disclosed that claimant had a ruptured disc at L5-S1.  
 
            Claimant had surgery on January 29, 1989, in which part of 
 
            his herniated disc was removed.  Claimant was off work for 
 
            approximately three months after the surgery and related his 
 
            understanding of the restrictions under which he was to 
 
            operate.  Claimant was prescribed a regular exercise program 
 
            which he indicated he performed.  He indicated he still had 
 
            pain and numbness in his low back and down his right leg.  
 
            Claimant indicated he was told to take Advil which he said 
 
            he took and that this helped with the pain.  Claimant 
 
            estimated the average number he took and joint exhibit 6 is 
 
            his estimate which amounts to a total of $490.50.  Claimant 
 
            had no specific bills or dates.
 
            
 
                 Claimant related that he was off work again for 
 
            approximately nine weeks beginning around March of 1991, 
 
            when he had a flare-up with his back.  The parties 
 
            stipulated that he was off work from March 15, 1991 to and 
 
            including May 5, 1991, and was paid healing period for this 
 
            period.  Claimant related the various places he has worked.  
 
            He works out of the union hall at union shop companies.  
 
            Claimant related that there is usually a period each year in 
 
            which he is laid off due to the time of year and inclement 
 
            weather.  It is usually in the late part and early part of 
 
            the year.  Claimant related that when he was released in May 
 
            of 1991, the doctor recommended certain limits and 
 
            restrictions and that when he had his last medical 
 
            appointment in June of 1991, at which time he complained of 
 
            right leg numbness and pain in his lower back, the doctor 
 
            wanted him to stay on his exercise program and watch his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            activities.  He indicated all of his restrictions at that 
 
            time are still current.
 
            
 
                 Claimant indicated that when he went to the doctor in 
 
            1991, the doctor indicated there is not much more the doctor 
 
            can do for him and that he would just have to live with the 
 
            condition.
 
            
 
                 Claimant related there are certain things involved with 
 
            his work that he has to be careful doing or things that 
 
            cause problems, one of which is working a break clutch on 
 
            certain equipment.  He indicated any kind of twisting, 
 
            particularly repetitively, causes pain and problems.
 
            
 
                 Claimant testified there are certain actions or 
 
            movements he must do in connection with his sheet metal job, 
 
            such as kneeling, crawling, working in crawl places, 
 
            lifting, reaching.  He said he cannot do some of these 
 
            things for very long and that he performs his work slower 
 
            than he did before his December 1988 injury.  Claimant again 
 
            related the many activities he did before his December 5, 
 
            1988 injury, such as fishing, boating, hunting snowmobiling, 
 
            gardening, etc.  It appears from his testimony that claimant 
 
            is doing all those same activities now since his injury but 
 
            indicated that he is doing them in a lesser degree of 
 
            frequency.  It appears to the undersigned that there is 
 
            nothing claimant did before December 1988 that he cannot do 
 
            now.  The undersigned questions whether claimant is actually 
 
            limiting himself in some of these activities to a lesser 
 
            degree than he did prior to December 5, 1988, even though he 
 
            may have some pain when he does them now versus when he did 
 
            them prior to December 5, 1988.
 
            
 
                 Claimant testified as to the various union shops for 
 
            which he has worked before and after his injury.  It appears 
 
            that claimant is still able to do the work that he was doing 
 
            prior to December 5, 1988.  Claimant said he isn't required 
 
            to take a physical when he goes out on a job.  Claimant has 
 
            taken jobs outside of town and outside of the state and does 
 
            travel to the jobs.
 
            
 
                 On cross-examination, claimant was asked extensively 
 
            regarding certain questions and answers he gave in his 
 
            deposition taken March 25, 1993.  Claimant was also referred 
 
            to his income tax returns.  Claimant acknowledged that 
 
            basically his income situation, other than in the year of 
 
            his injury and any effect his flare-up in March of 1991 had 
 
            on his work, is basically earning the same or similar if not 
 
            more income on an average than he was earning at the time of 
 
            his injury, and that basically he is at an economic income 
 
            status that he anticipated he would be in.  Claimant did not 
 
            anticipate any change in his overall income situation and 
 
            that the amount or extent of work would be somewhat steady 
 
            or similar as it has been for 1993.  It is obvious to the 
 
            undersigned that under the current circumstances if there is 
 
            a variance it would be because of lack of work and not 
 
            because of claimant's current medical situation, 
 
            particularly based on the situation existing in the last two 
 
            or three years.  Claimant acknowledged that he has never 
 
            refused a job due to his injury or any medical condition and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            has taken any available work in town or out of town.  
 
            Claimant even put his name on the list at the union hall 
 
            that he is willing to travel and this is an additional item 
 
            that makes claimant more available for work because he is 
 
            willing to travel, particularly if there is a question of 
 
            work available.  Claimant acknowledges he does the same 
 
            thing now that he did before surgery even though they may 
 
            take longer to do them and he must be more careful.  
 
            Claimant acknowledged he does have some basic skills as an 
 
            electrician and picked up his knowledge of that by learning 
 
            and doing such work and watching others.  Claimant testified 
 
            that at the time of his injury in 1988 he was making $15.71 
 
            and that now he is making $16.82 per hour.
 
            
 
                 Claimant was questioned as to his income from the years 
 
            1986 through 1992 and was specifically referred to joint 
 
            exhibit 9 in which he acknowledged these figures are correct 
 
            and this exhibit was a summary of his income reflected on 
 
            his tax returns.  Claimant's income for the two years prior 
 
            to his December 5, 1988 injury was $26,988 and $34,994, 
 
            respectively.  In 1988, it was $28,986 and he hadn't worked 
 
            because of his December 5, 1988 injury for the rest of 1988.  
 
            Claimant indicated 1987 was a very good year and that there 
 
            is fluctuation from year to year in income depending on job 
 
            availability, etc., and that he wasn't necessarily surprised 
 
            that 1988 was less.
 
            
 
                 Claimant's 1989 income was $19,112.  The parties 
 
            stipulated that claimant had been off and receiving healing 
 
            period from December 6, 1988 to and including May 1, 1989.  
 
            Claimant's income in 1990, 1991 and 1992 was $34,741, 
 
            $29,754 and $33,352, respectively.  In 1991, he had a 
 
            flare-up in his back which was the result of his December 5, 
 
            1988 injury and was off work nine weeks.
 
            
 
                 Joint exhibit 2, at page 6, reflects that a CT scan of 
 
            claimant's lumbar spine showed a large disc herniation at 
 
            L5-S1 level, and page 7 indicates that on January 29, 1989, 
 
            claimant was admitted to the hospital for a laminectomy and 
 
            a discotomy at L5-S1 on the right.  Joint exhibit 2 reflects 
 
            the medical records of claimant and the various notes and 
 
            treatment with Anthony Piasecki, M.D.  Page 14 reflects the 
 
            last visit claimant had with Dr. Piasecki which was June 5, 
 
            1991.  Claimant had been back to work for a month after he 
 
            had had that flare-up to which the parties had stipulated 
 
            and claimant was paid healing period beginning March 15, 
 
            1991, to and including May 5, 1991.  Claimant was advised to 
 
            continue his back exercise program and use caution at work.  
 
            Claimant at that time was complaining of occasionally 
 
            getting a backache and having some numb feeling in his leg.
 
            
 
                 On January 30, 1990, at page 25 of joint exhibit 2, Dr. 
 
            Piasecki opined using the AMA tables that claimant had a 13 
 
            percent impaired function of a total person because of his 
 
            December 5, 1988 injury.  Claimant still had some residual 
 
            complaints in his back and leg but had been able to continue 
 
            working.  On page 30 of this exhibit there is a May 3, 1991 
 
            limitation report in which the doctor indicated that 
 
            claimant should avoid heavy lifting effective May 3, 1991 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and that there should be a follow-up evaluation in one 
 
            month.
 
            
 
                 Claimant seemed to give the impression that the doctor 
 
            has restrictions of no prolonged sitting, standing, 
 
            twisting, stooping and certain lifting.  In looking at the 
 
            medical record, it appears that the most recent indication 
 
            of limitation on claimant is Dr. Piasecki's June 5, 1991 
 
            notes in which he indicates that claimant is continuing his 
 
            back exercise program and uses due caution in his work and 
 
            if he is having problems he is to return.  He indicates that 
 
            if claimant watches himself and doesn't do too strenuous of 
 
            a job, he can carry on.  There is no further evidence of the 
 
            fact that the restrictions would continue or not continue.  
 
            It would seem common sense that claimant with his back 
 
            surgery should avoid strenuous work but claimant's actions 
 
            have spoken for themselves in the last two years.  Claimant 
 
            seemed to indicate that these restrictions in 1991 are the 
 
            current restrictions.  Claimant's exhibits extreme 
 
            motivation and a zeal to work.
 
            
 
                 Defendants have admitted that claimant was injured and 
 
            incurred a back injury resulting in a 13 percent permanent 
 
            functional impairment.  Defendants paid the claimant based 
 
            on the 13 percent impairment and paid him what is equivalent 
 
            of a 13 percent industrial disability, namely, 65 weeks.  
 
            Defendants contend that claimant is owed no more.  
 
            Defendants fully realize that impairment is one item to be 
 
            used in determining the extent of industrial disability but 
 
            emphasized that in claimant's situation with the facts we 
 
            have here, that is the only factor that is really applicable 
 
            and that none of the other factors in any way result in an 
 
            increase over and above the 13 percent.  Of course, claimant 
 
            disagrees.
 
            
 
                 There is no question that claimant has had a remarkable 
 
            recovery and results.  Claimant has had no loss of income 
 
            and he returned to work and is basically carrying on the 
 
            same as he did before his injury other than he has to watch 
 
            himself and obviously does have some limitations to the 
 
            extent of being careful of what he lifts and how he performs 
 
            his job.  He also indicates, which would be reasonable, that 
 
            he may be operating on a little slower basis than he was 
 
            prior to injury which would be good judgment on his part.  
 
            The fact is he has lost no work, has made himself available 
 
            for all the work he can possibly do, including volunteering 
 
            for out of town travel.  Claimant is obviously highly 
 
            motivated.  Claimant is still very active in most if not all 
 
            activities he participated in prior to his injury and prior 
 
            to his surgery.  The evidence shows that claimant is of such 
 
            a nature that he likes to work, likes to stay active.  The 
 
            undersigned believes he is bothered by his impairment when 
 
            he does certain activities.  The evidence shows that since 
 
            his injury claimant has not worked again for the defendant 
 
            employer.  It appears the defendant employer is, from 
 
            claimant's own testimony, one of the busiest of all the 
 
            sheet metal union shops in the area.  To date, it appears 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            that there has been sufficient work with the other union 
 
            shop sheet metal companies so that claimant has been able to 
 
            keep busy and earn substantially similar income as he did 
 
            before his injury.  One of the Giesler brothers from the 
 
            defendant company was in the courtroom during the trial and 
 
            defendants decided not to have him testify.  Only the 
 
            defendant employer could state why there seems to be a 
 
            reluctance to hire the claimant.   It would be logical for 
 
            the undersigned to conclude that because of claimant's work 
 
            injury and impairment and because defendant employer knows 
 
            claimant in that respect more than other union shops, 
 
            defendant company is fearful that claimant may again injure 
 
            himself or can't do all the lifting requirements as an 
 
            uninjured employee.  It has been four and one-half years 
 
            since claimant's injury and you would think in that period 
 
            of time claimant would have had occasion to do work for 
 
            defendant employer.  There appears to be approximatelty 
 
            three main sheet metal union shops in Dubuque.
 
            
 
                 Defendants' attorney cross-examined the claimant both 
 
            at the hearing and extensively at the time of taking 
 
            claimant's deposition in March of 1993 as to claimant's 
 
            understanding of industrial disability and/or loss of 
 
            earning capacity.  Basically, industrial disability and loss 
 
            of earning capacity are synonymous.  Claimant is not 
 
            expected to know nor is the claimant actually qualified to 
 
            determine what the loss of earning capacity is under the 
 
            workers' compensation law.  In fact, medical personnel are 
 
            not qualified.  Only the undersigned is qualified to decide 
 
            in this trial setting whether claimant has a loss of earning 
 
            capacity-industrial disability.  In listening and seeing 
 
            claimant's explanation and answers to the defendants' 
 
            attorney's questions, it is obvious that claimant is talking 
 
            about loss of income which many lay people including medical 
 
            personnel mistakenly equate with loss of earning capacity.  
 
            There is no question that the claimant has not had a loss of 
 
            income as a result of his injury.  He is making as much now 
 
            as he was at the time of his injury and in fact making more 
 
            except with inflation and raises it would be somewhat 
 
            comparable to what he was making at the time of his December 
 
            5, 1988 injury.  It is true that functional impairment is 
 
            one element of many in trying to decide one's industrial 
 
            disability.  It is true that one can have a lower degree of 
 
            disability than what a permanent functional impairment would 
 
            be or one could have a higher industrial disability than the 
 
            impairment or it could be the same.
 
            
 
                 Claimant is 34 years of age.  Although he only has a 
 
            high school education, he seems to also have some basic 
 
            skills in electrical work which he picked up on his own.  
 
            Claimant has done heavy manual work most of his working 
 
            life.  It is in this type of industry that claimant has his 
 
            skills and expertise and reputation.  Claimant is in an 
 
            industry that strength of the body, of one's back, one's 
 
            arms, ability to reach, lift, crawl, stoop, twist, walk for 
 
            a lengthy period time, stand for long periods of time is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            necessary.  Claimant is lucky that when he works out of the 
 
            union hall all those either requesting his help or those 
 
            companies to which he is sent to work do not require a 
 
            physical.  The fact is claimant has a back condition that is 
 
            very susceptible to future injuries if he is not extra 
 
            careful.  One can be punished industrially for lack of 
 
            motivation.  One with extreme motivation like claimant 
 
            should not be punished.  He should be congratulated for his 
 
            zeal to overcome adversity.
 
            
 
                 The undersigned finds that claimant does have a loss of 
 
            earning capacity.  The undersigned, in considering 
 
            claimant's age, education, his prior and post-injury medical 
 
            and work history, the location of his injury, the severity 
 
            of his injury, his healing periods, one of which was over 
 
            four and one-half months, and the second one was 
 
            approximately nine weeks, the second healing period being 
 
            the result of a flare-up approximately two years after the 
 
            end of his last healing period, claimant's motivation, 
 
            functional impairment, any restrictions, finds claimant has 
 
            a 20 percent industrial disability.
 
            
 
                 Claimant contends he has incurred $490.50 for the cost 
 
            of Advil (ibuprofen) which he takes for the pain or pain 
 
            relief over the last several years.  The only evidence is 
 
            claimant's word and estimate as to how many pills he has 
 
            taken over the period of time per day or per month.  See 
 
            joint exhbibit 6.  The undersigned believes that due to the 
 
            nature of claimant's injury, the location, and the nature of 
 
            claimant's work and the activities he otherwise participates 
 
            in, he does have pain and it would be logical to believe 
 
            that he has to take considerable pain relief medicine.  The 
 
            undersigned finds that defendants shall pay claimant the 
 
            $490.50 as reimbursement for the Advil expense claimant has 
 
            incurred over approximately the last four and one-half 
 
            years.  The undersigned realizes that since this is not a 
 
            prescription-type drug that the nature of the records that 
 
            could possibly otherwise be kept are not as easily done or 
 
            retrieved as is the case with prescription drugs.
 
            
 
                 Claimant seeks reimbursement for mileage as also 
 
            represented by joint exhibit 6 in the amount of $472.29.  
 
            There has been no contrary evidence as to this testimony or 
 
            the items listed on joint exhibit 6.  The undersigned finds 
 
            that defendants shall reimburse claimant the $472.29 for his 
 
            mileage expenses.
 
            
 
                 The parties do not disagree as to the costs involved as 
 
            represented by joint exhibit 7.  The only dispute is that 
 
            defendants desire claimant to pay and vice versa.  The 
 
            undersigned finds that defendants shall pay the costs of 
 
            this action as set out on joint exhibit 7.
 
            
 
                    
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that claimant has incurred a 20 
 
            percent industrial disability as a result of his December 5, 
 
            1988 work injury, which injury caused claimant to incur the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            industrial disability set out herein and caused claimant to 
 
            incur a permanent functional impairment to his back and 
 
            caused him to have a laminectomy and discotomy at L5-S1 on 
 
            his lower back.
 
            
 
                 Defendants shall reimburse claimant for $490.50 for the 
 
            Advil (ibuprofen) that claimant took as set out in joint 
 
            exhibit 6 and that defendants shall reimburse claimant for 
 
            $472.29 in for the mileage incurred for claimant's medical 
 
            treatments and therapy as set out in joint exhibit 6.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to one hundred (100) weeks of 
 
            permanent partial disability benefits at the weekly rate of 
 
            three hundred ninety-two and 99/100 dollars ($392.99), 
 
            beginning May 2, 1989 and interrupted for a period beginning 
 
            March 15, 1991 to and including May 5, 1991 and beginning 
 
            again May 6, 1991.
 
            
 
                 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 previously 
 
            paid claimant sixty-five (65) weeks.  All healing period was 
 
            not in dispute and has been paid in full for the periods 
 
            beginning December 6, 1988 to and including May 1, 1989, and 
 
            March 15, 1991 to and including May 5, 1991.
 
            
 
                 That defendants shall pay claimant's four hundred 
 
            ninety and 50/100 ($490.50) as medical reimbursement for the 
 
            Advil claimant purchased and four hundred seventy-two and 
 
            29/100 dollars ($472.29) for reimbursement for the medical 
 
            mileage, all as represented by joint exhibit 6.
 
            
 
                 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 April, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Francis J Lange
 
            Attorney at Law
 
            1141 Main St
 
            P O Box 1811
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Dubuque IA 52004-1811
 
            
 
            Mr Arthur F Gilloon
 
            Attorney at Law
 
            800 Town Clock Plaza
 
            P O Box 857
 
            Dubuque IA 52004
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed April 21, 1993
 
                                            Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM J. KUHLE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 907602
 
            GEISLER BROTHERS CO.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE CINCINNATI INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 20% industrial disability.