BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
JAMES E. BROWN, JR.,      
 
                                        File Nos. 1052984
 
     Claimant,                                     909859
 
            
 
vs.                                    A R B I T R A T I O N
 
            
 
IOWA STATE WOMEN'S REFORMATORY,               A N D
 
            
 
     Employer,                             R E V I E W -
 
            
 
and                                     R E O P E N I N G
 
            
 
STATE OF IOWA,                           D E C I S I O N
 
            
 
     Insurance Carrier,    
 
     Defendant.       
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a consolidated proceeding in arbitration and review-reopening 
 
brought by James Brown, claimant, against the Iowa Department of 
 
Corrections and the Iowa State Women's Reformatory, employer, 
 
hereinafter referred to as the prison, a self-insured defendant, for 
 
workers' compensation benefits as a result of a prior injury on 
 
February 9, 1989 and an alleged new injury on March 4, 1993.  A prior 
 
final arbitration decision for the injury of February 9, 1989 was filed 
 
on November 1, 1991.  On February 28, 1995, a hearing was held 
 
on claimant's petitions and the matter was considered fully 
 
submitted at the close of this hearing.
 
 
 
The parties have submitted a hearing report of contested issues and 
 
stipulations which was approved and accepted as a part of the record of 
 
this case at the time of hearing.  The oral testimony and written 
 
exhibits received during the hearing are set forth in the hearing 
 
transcript.
 
 
 
According to the hearing report, the parties have stipulated to the 
 
following matters:
 
 
 
1.  On March 4, 1993 claimant received an injury arising out of and in 
 
the course of employment with the prison.
 
 
 
2.  Claimant is not seeking temporary total or healing period benefits 
 
in this proceeding.
 
 
 
3.  If the injury of March 4, 1993 is found to have caused permanent 
 
disability, the type of disability is an industrial disability to the 
 
body as a whole.
 
 
 
4.  At the time of the injury on March 4, 1993, claimant's gross rate 
 
of weekly compensation was $697.00; he was married; and, he was 
 
entitled to two exemptions.  Therefore, claimant's weekly rate of 
 
compensation is $426.32 for the injury of March 4, 1993 according to 
 
the industrial Commissioner's published rate booklet for this injury.
 
 
 
5.  It was stipulated that the providers of the requested medical 
 
expense would testify as to its reasonableness and defendant is not 
 
offering contrary evidence.  It was agreed that the requested bill was 
 
causally connected to the work injury of March 4, 1993.
 
 
 
During the hearing, the issue of re-credit of sick leave due to a 16 
 
hour absence from work for treatment of the work injuries was settled 
 
and the issue was withdrawn.
 

 
 
 
 
 
 
 
 
 
                               ISSUES
 
 
 
The parties submitted the following issues for determination in this 
 
proceeding:
 
 
 
 I. The extent of claimant's entitlement to permanent disability 
 
benefits.
 
 
 
II. The extent of claimant's entitlement to medical benefits.
 
 
 
                       FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the evidence, the 
 
deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is unnecessary to this decision as defendant did 
 
not appear to placed claimant's credibility at issue during the 
 
hearing.
 
 
 
The findings in the arbitration decision of November 1, 1991 are 
 
incorporated by reference.  Briefly, this agency previously found that 
 
claimant suffered several work injuries to his low back, shoulder and 
 
neck.  Claimant is a retiree from the U.S. Air Force.  His entire 20 
 
year military experience involved food service mostly as a mess 
 
sergeant.  Since leaving the military, claimant's primary employment 
 
has continued in food service, except for a brief period of insurance 
 
sales and custodian work in the state of Kansas.  He has worked for 
 
the state of Iowa since 1980.  Since 1983, he has been food service 
 
director at the prison.  Although his primary duties are managerial, 
 
he is asked routinely to perform manual labor foods service and 
 
cooking duties.  Claimant was injured in the performance of his 
 
food service director duties.  After recovery from treatment of 
 
the injuries, he returned to his prison job without loss of pay.  
 
He was found at that time to have suffered only a modest 10 percent 
 
permanent partial industrial disability.
 
 
 
At the present time, claimant has the same restrictions on activities 
 
as set forth in page 7 of the November 1, 1991 arbitration decision. 
 
There has been no change in impairment ratings.  Claimant continues in 
 
his director job at the prison.  Claimant's testimony establishes that 
 
the only change in duties since the arbitration decision is the 
 
elimination of storeroom duty without loss of pay or position.  The 
 
state continues to accommodate for his disability.
 
 
 
The March 4, 1993 injury occurred when claimant twisted to open a 
 
sliding gate on the prison grounds.  He sought treatment for increased 
 
back pain from Herbert Rosen, D.O.  Dr. Rosen's $40.00 bill for such 
 
services is the only medical bill in dispute.  There is nothing in the 
 
record to suggest the claimant asked to see Dr. Rosen before he sought 
 
this treatment.  However, it is clear that he immediately reported the 
 
injury to his superiors and there is nothing in the record to show that 
 
any particular treatment was offered.  This claim of injury was 
 
denied in the answer and not admitted until the hearing in this 
 
proceeding.
 
 
 
Interestingly, claimant was disciplined by a letter of reprimand as a 
 
result of the injury.  Apparently, one of his job standards is to avoid 
 
injury.  Consequently, even though he may not have violated any 
 
activity restriction, he is in violation of work rules if he suffers a 
 
work injury.  Defendant apparently filed an answer herein denying the 
 
occurrence of the injury after it had disciplined claimant for allowing 
 
the injury to happen.
 
 
 
Claimant asserts that his condition today is worse than at the time of 
 
the 1991 decision.  He believes that the new injury aggravated this 
 
prior injury.  He complains of increased pain and discomfort which has 
 
greatly disrupted his personal life and has made working at the prison 
 
more difficult.  No physician has opined that his condition has worsen.
 
 
 
He also states that he is in fear of losing his job and that he has 
 
been warned that continued absences from work due to additional work 
 
injuries or pain from past injuries would result in the loss of his 
 
job.  Claimant's superiors at the prison deny this and point to 
 
satisfactory past performance evaluations.  Given the policy of 
 
disciplining employees for reporting work injuries, claimant's fears 
 
for the future may be justified.  However, a loss of money or job 
 
status has not as yet occurred and it would
 

 
 
 
 
 
 
 
 
 
be speculative to assess the probability of a loss of earning capacity 
 
from such a disciplinary policy.  At the present time, claimant's loss 
 
of quality of life due to his back, neck and shoulder pain has not 
 
affected his earning capacity.
 
 
 
It is found that nothing that has occurred since the arbitration 
 
decision, including the new work injury of March 4, 1993, to increase 
 
his industrial disability beyond the 10 percent amount found in the 
 
arbitration decision of November 1, 1991.  Despite some increase in 
 
subjective pain complaints, the prison continues to accommodate for 
 
claimant's injuries and claimant remains employed as before.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
 I.  In a review-reopening proceeding, claimant has the burden of 
 
establishing by a preponderance of the evidence that he suffered a 
 
change of condition or a failure to improve as medically anticipated as 
 
a proximate result of his original injury, subsequent to the date of 
 
the award or agreement for compensation under review which entitles him 
 
to additional compensation.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 
 
455 (Iowa 1969).  Meyers v. Holiday Inn of Cedar Falls, 272 N.W.2d 24 
 
(Iowa Ct. App. 1978).  
 
 
 
Such a change of condition is not limited to a physical change of 
 
condition.  A change in earning capacity subsequent to the original 
 
award which is proximately caused by the original injury also 
 
constitutes a change in condition under Iowa Code section 85.26(2) and 
 
86.14(2).  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980).
 
 
 
A physical impairment or restriction on work activity may or may not 
 
result in such a loss of earning capacity.  Examination of several 
 
factors determines the extent to which a work injury and a resulting 
 
medical condition caused an industrial disability.  These factors 
 
include the employee's medical condition prior to the injury, 
 
immediately after the injury and presently; the situs of the injury, 
 
its severity and the length of healing period; the work experience of 
 
the employee prior to the injury, afterthe 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.  See Peterson v. Truck Haven Cafe, Inc., Vol. 
 
I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App. 
 
February 28, 1985).
 
 
 
In the case sub judice, claimant failed to show that he suffered 
 
additional loss of his earning capacity as a result of any physical or 
 
non-physical change of condition since the November 1, 1991 arbitration 
 
decision, including the occurrence of the new work injury on March 4, 
 
1993.  The only significant new circumstance stems from a rather odd 
 
policy of disciplining an employee for injuring himself by performing 
 
job related activity within his restrictions.  It may be that such a 
 
policy is contrary to the public policy of this state.  However, 
 
until there is an economic loss from implementation of such a policy, 
 
nothing can be done by this agency.  It certainly would be 
 
actionable before this agency if future discipline results in loss 
 
of employment or job status adversely affecting earning capacity.  
 
Such action would also be actionable in tort.  However, fear that 
 
this will happen sometime in the future, even if somewhat justified, 
 
is not compensable at the present time.
 
 
 
II.  Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
payment of reasonable medical expenses incurred for treatment of a work 
 
injury.  In the case at bar, the only disputed medical bill is that of 
 
Dr. Rosen for the treatment following the March 4, 1993 injury.  This 
 
claim of injury was denied until the date of hearing.  This agency has 
 
held that it is inconsistent to deny liability and the obligation to 
 
furnish care on one hand and at the same time claim a right to choose 
 
the care.  Kindhart v.Fort Des Moines Hotel, I Iowa Industrial 
 
Comm'r Decisions No. 3, 611 
 

 
 
 
 
 
 
 
 
 
(App. 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Comm'r 
 
Report 16 (App. 1981).
 
 
 
Therefore, the medical expenses requested will be awarded.
 
 
 
                             ORDER
 
 
 
1.  The review-reopening petition involving the injury of February 9, 
 
1989 is dismissed with prejudice.
 
 
 
2.  With reference to file number 1052984 for the March 4, 1993 injury, 
 
defendant shall pay the forty and no/l00 dollars ($40.00) medical 
 
expense of Dr. Rosen listed in the hearing report.
 
 
 
3.  Defendant shall pay the costs of both of these actions pursuant to 
 
rule 343 IAC 4.33, including reimbursement to claimant for any filing 
 
fees paid in this matter.
 
 
 
Signed and filed this ____ day of April, 1995.                             
 
                                 ______________________________                              
 
                                 LARRY P. WALSHIRE                            
 
                                 DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. David D. Drake
 
Attorney at Law
 
1200 35th  STE 500
 
West Des Moines  IA  50266
 
 
 
Ms. Joanne Moeller
 
Assistant Attorney General
 
Tort Claims Division
 
Hoover State Office Bldg
 
Des Moines  IA  50319
 
          
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES E. BROWN, JR.,          :
 
                                          :     File Nos. 909859
 
                 Claimant,                :               941719
 
                                          :               894653
 
            vs.                           :               864419
 
                                          :               946038
 
            IOWA STATE WOMEN'S            :
 
            REFORMATORY,                  :
 
                                          :     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 James E. 
 
            Brown, Jr., against the Iowa State Women's Reformatory, 
 
            employer, and State of Iowa, as the insurance carrier, as 
 
            defendants.
 
            
 
                 Claimant has alleged five separate injury dates:  
 
            September 17, 1987 (agency file 864419); August 10, 1988 
 
            (agency file 894653); February 9, 1989 (agency file 909859); 
 
            October 9, 1989 (agency file 946038); and, February 15, 1990 
 
            (agency file 941719).
 
            
 
                 The matter came on for hearing on August 15, 1991, at 
 
            Des Moines, Iowa.
 
            
 
                 The evidence in the case consists of the testimony from 
 
            the claimant; Gloria Sapp, business manager for the Women's 
 
            Reformatory; joint exhibits 1 through 15; and, defendants' 
 
            exhibits A, B, D, E and F.
 
            
 
                                      issues
 
            
 
                 The defendants deny that claimant sustained injuries 
 
            which arose out of and in the course of his employment on 
 
            September 17, 1987 and October 9, 1989.  They admit that he 
 
            sustained an injury which arose out of and in the course of 
 
            his employment on August 10, 1988; February 9, 1989; and 
 
            February 15, 1990.
 
            
 
                 The remaining issue is to determine whether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received and having presided at the hearing, finds 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the following facts:
 
            
 
                 Claimant, James Brown, Jr., was born on February 6, 
 
            1938.  At the time of the hearing, he was 53 years of age.
 
            
 
                 Claimant graduated from East High School, in Des 
 
            Moines, Iowa, in January of 1956.  He joined the air force 
 
            in January of 1956 and served for 20 years, retiring in 
 
            1976.
 
            
 
                 Claimant attempted to return to school at Central 
 
            Missouri State in March of 1976, but was unable to finish 
 
            any courses.
 
            
 
                 While serving in the air force, claimant's duties were 
 
            concentrated in the food service field.  He underwent food 
 
            service training, a twelve week course which concentrated on 
 
            sanitation, management and budget.
 
            
 
                 Claimant started out as a cook and dishwasher and subse
 
            quently graduated to supervisor and shift leader.  He was in 
 
            charge of missile feeding, which consisted of preparing 
 
            dining facilities at seven missile sites and coordinating 21 
 
            people within the food service department.  Specifically, 
 
            his duties included scheduling personnel; providing on-the-
 
            job training for personnel; supervising food orders; 
 
            balancing the budget; delivering foods to various sites; 
 
            inspecting and taking inventory; and, working as a custodian 
 
            for the facility.
 
            
 
                 Since 1976, claimant has worked as a cook, part-time 
 
            life insurance salesperson, and as a custodian/janitor.
 
            
 
                 Claimant has worked as the director of food service at 
 
            the Iowa Women's Reformatory in Mitchellville, Iowa, since 
 
            April of 1983.  His usual duties consist of ordering food 
 
            supplies; scheduling staff and inmate help; monitoring 
 
            sanitary aspects of the facility; supervising food 
 
            preparations; accounting and bookkeeping; and, working in 
 
            the kitchen as a food preparer.
 
            
 
                 Claimant's first claim arises from an injury he alleges 
 
            occurred on September 17, 1987.  Claimant stated that as he 
 
            was unloading salt at the Mitchellville facility, he twisted 
 
            his back on the right side in the rib cage area.  He was off 
 
            work for three to four days and received heat treatment 
 
            prescribed by Herbert Rosen, D.O.  Dr. Rosen's notes 
 
            indicate that upon physical examination, claimant was 
 
            suffering from acute right chest pains; right-sided/mid back 
 
            strain; right post rib cage strain; and, separation of the 
 
            costo-chondral ribs.  He anticipated no permanent defect, 
 
            and identified no fractures.  After approximately one week 
 
            of treatment, he released claimant to return to work without 
 
            restrictions (Joint Exhibit 1, pages 234-242).
 
            
 
                 The next injury alleged is that of August 10, 1988.  
 
            Claimant testified that in August of 1988, as he was moving 
 
            file cabinets, he twisted his low back and received 
 
            treatment from Dr. Rosen.  Upon physical examination, Dr. 
 
            Rosen found spastic myofascitis; low back strain; secondary 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            radiculitis; bilateral sciatic nerves; and, weak lower 
 
            extremities.  It was unknown whether claimant would sustain 
 
            any permanent disability from the incident, and, claimant 
 
            was referred to William Boulden, M.D. (Jt. Ex. 1, pp. 104, 
 
            181, 202-220).
 
            
 
                 Claimant was seen by Dr. Boulden on September 8, 1988.  
 
            X-rays and a CT scan did not reveal anything significant, 
 
            and there was no evidence of a herniated disc or stenosis.  
 
            He was taken off of work for several weeks, and followed up 
 
            with Dr. Boulden on September 29, 1988.  He displayed 
 
            improved mobility, and claimant was given a release to 
 
            return to work on October 10, 1988.  Dr. Boulden opined that 
 
            claimant had not sustained any permanent injury to his 
 
            spine, and recommended that claimant lose weight in order to 
 
            "help him on a long-term basis." (Jt. Ex. 1, pp. 248-249)
 
            
 
                 Claimant stated that his symptoms improved, he lost 
 
            weight through exercise, and he returned to his regular job 
 
            with no additional time off work.
 
            
 
                 The next incident occurred on February 9, 1989.  
 
            Claimant described a situation where the reformatory had an 
 
            emergency lock-down.  As he was retrieving food supplies for 
 
            the lock-down, he reached for cases of cans weighing 30 to 
 
            40 pounds.  As he loaded these supplies into a truck, he 
 
            hurt his left arm, shoulder and low back.
 
            
 
                 Again, claimant sought treatment from Dr. Rosen, who 
 
            diagnosed acute spastic myofacitis over the entire back with 
 
            secondary peripheral radiculitis.  He recommended physical 
 
            therapy, and claimant received diathermy and ultrasound 
 
            through February 17, 1989 (Jt. Ex. 1, pp. 192-197).
 
            
 
                 On February 21, 1989, claimant came under the care of 
 
            Thomas Carlstrom, M.D., who treated claimant through May 8, 
 
            1989.  Dr. Carlstrom noted normal range of motion of the 
 
            shoulders, tenderness over the lower lumbar spine, and 
 
            slightly diminished range of motion of his back.  He 
 
            diagnosed myofascial low back pain, and sent claimant to the 
 
            Low Back Institute for treatment.  He recommended that 
 
            claimant could return to work with a strict lifting 
 
            restriction, and noted that claimant's supervisory role 
 
            would permit such a return to work.  Claimant was also 
 
            provided a TENS unit, and was released to return to work on 
 
            March 6, 1989, with a 40 pound lifting restriction.  He was 
 
            to work four hours a day for four weeks (Jt. Ex. 1, pp. 250-
 
            253; 256-257; and 260).  Claimant returned to Dr. Carlstrom 
 
            in late May 1989, and was referred to the Pain Management 
 
            Center.  On May 8, 1989, Dr. Carlstrom opined that "this 
 
            latest back pain episode of his has come from his lifting 
 
            incident at work." (Jt. Ex. 1, pp. 254-255)
 
            
 
                 Various records and notes from the Iowa Methodist Low 
 
            Back Institute, dated March 20, 1989 through August 29, 
 
            1989, are found at joint exhibit 1, pages 32-42; 68-69; 71-
 
            73; and, 275-278.  Discharge notes dated August 10, 1989, 
 
            indicate that claimant progressed slowly during the tenure 
 
            of the physical therapy, and upon discharge continued to 
 
            complain of low back and upper back pain as well as left 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            shoulder pain (Jt. Ex. 1, pp. 32-33).
 
            
 
                 Claimant suffered a flare-up when he tried to return to 
 
            a full work schedule.  The diagnosis was myofascial pain 
 
            syndrome, and claimant was directed to take Clinoril, 
 
            Tylenol and Tryptophan.  He was scheduled to undergo and 
 
            EMG, which was normal (Jt. Ex. 1, pp. 89-90).
 
            
 
                 Claimant's next alleged injury occurred on October 9, 
 
            1989.  Dr. Rosen's surgeon's report indicates that claimant 
 
            had been bending over continuously for the last few days, 
 
            was working longer hours, and strained his back.  Again, Dr. 
 
            Rosen foresaw no permanent defect, and recommended physical 
 
            therapy (Jt. Ex. 1, pp. 106, 174 [duplicate copies]).  
 
            Claimant continued to see Dr. Rosen from October 11 through 
 
            October 12, 1989, and eventually came under the care of 
 
            Michael Makowsky, M.D., on October 16, 1989.  Dr. Makowsky 
 
            noted tenderness to palpation of the lower and upper back, 
 
            but normal straight leg raising tests, symmetric deep tendon 
 
            reflexes and intact motor and sensory systems.  He diagnosed 
 
            myofascial back pain, and restricted claimant's lifting 
 
            duties to no more than 12 to 15 pounds, with no repetitive 
 
            bending, reaching or pulling.  During October, November and 
 
            December 1989, through January and February 1990, claimant 
 
            continued to see Dr. Makowsky and undergo physical therapy. 
 
            Claimant was discharged from physical therapy at the Iowa 
 
            Methodist Pain Management Center, which he had undergone 
 
            from October through December of 1989.  William Koenig, Jr., 
 
            M.D., the medical director of the center, formed the 
 
            following opinion on February 8, 1990:
 
            
 
                    Mr. Brown has been seen on several occasions, 
 
                 and my clinical diagnosis has been a subacute 
 
                 fibrositis syndrome (myofascial pain syndrome).  
 
                 The patient also has had an EMG examination 
 
                 performed during the course of his treatment, 
 
                 which was normal also.  He has remained with 
 
                 normal range of motion and normal strength 
 
                 throughout repeated examinations.  Fibrositis 
 
                 syndrome, of course, carries no permanent partial 
 
                 disability rating.
 
            
 
            (Jt. Ex. 1, p. 85)
 
            
 
                 Little, if any progress was made to treat claimant's 
 
            pain symptoms, until claimant began to see Ronald Evans, 
 
            D.C., whom he saw on February 21, 1990.  Although initial 
 
            notes of Dr. Evans are illegible, notes dated through March 
 
            and April of 1990 indicate that claimant underwent 
 
            ultrasound and tetanization of the low back, as well as 
 
            petrissage of the cervicothoracic tissues.  Claimant also 
 
            underwent full spine manipulation, showed minimal 
 
            improvement at low back and neck, but was released to return 
 
            on an as-needed basis on April 13, 1990.  Dr. Evans' final 
 
            evaluation concludes that claimant has a lumbosacral strain, 
 
            complicated by preexisting myofascial fibrositis, as well as 
 
            a cervical sprain complicated by a preexisting cervical 
 
            arthrosis (Jt. Ex. 1, pp. 261-270).
 
            
 
                 After several more office visits with Dr. Makowsky, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant was released from care, and stated that his 
 
            symptoms were about the same (Jt. Ex. 1, pp. 46-48).
 
            
 
                 However, Dr. Makowsky recommended further therapy, 
 
            including water exercises from February through March of 
 
            1990.  During this time, specifically on February 15, 1990, 
 
            claimant had yet another work-related injury.  He described 
 
            this incident as falling in the parking lot when he slipped 
 
            on some ice.  Again, claimant hurt his left shoulder and 
 
            aggravated his back problem.  Records from Dr. Makowsky 
 
            indicate that claimant complained of pain going down both of 
 
            his legs, and pain in his left shoulder.
 
            
 
                 Claimant began physical therapy again on February 15, 
 
            1990.  He used a TENS unit, underwent ultrasound treatments, 
 
            hot packs and exercise.  He continued this course of 
 
            treatment through June 15, 1990, when he was discharged upon 
 
            doctor's orders (Jt. Ex. 1, pp. 80-84; 285-304).  Claimant 
 
            returned to Dr. Rosen in July of 1990, and was released to 
 
            return to work with no lifting of greater than 15 pounds, 
 
            and no prolonged standing, walking or bending.  During the 
 
            next several months, claimant continued to undergo some form 
 
            of physical therapy, and was released to return to work in 
 
            August of 1990.  Again, claimant was restricted to no 
 
            lifting greater than 15 pounds, no prolonged standing, 
 
            walking or bending for one month after his return to work 
 
            (Jt. Ex. 1, pp. 119-171).
 
            
 
                 Dr. Rosen advised claimant to attend the Mercy Wellness 
 
            Program, but the notes indicate that claimant returned to 
 
            the Iowa Methodist Low Back Institute (Jt. Ex. 1, pp. 109 
 
            and 120).  Additionally, the records indicate that claimant 
 
            received therapy from the Mercy Aquatic Program in October, 
 
            November and December of 1990 (Jt. Ex. 1, p. 169).
 
            
 
                 Claimant returned to the Iowa Methodist Low Back 
 
            Institute in November of 1990.  He underwent an MRI of the 
 
            lumbosacral spine and cervical spine.  Upon examination, 
 
            Craig DuBois, M.D., noted tenderness in the lumbosacral 
 
            area, and paraspinous tenderness in the cervical C6-7 region 
 
            with palpation.  Dr. DuBois also noted mild pain restriction 
 
            of the left shoulder on abduction.  Range of motion was 
 
            markedly decreased on the left lateral flexion, left lateral 
 
            rotation, extension and flexion (Jt. Ex. 1, pp. 29-31).
 
            
 
                 A follow-up visit conducted on March 29, 1991, 
 
            indicates that the results of the MRI showed stenosis of the 
 
            cervical canal along the left sided disc protrusion C6-7 and 
 
            possible mid-line C4-5 with bilateral joint spurring at C5-
 
            6-7.  The lumbosacral spine showed spinal stenosis at L4-5.  
 
            Claimant was taking Monogesic, Prevovil, Soma and Voltaren.  
 
            The overall impression was that claimant suffered from 
 
            cervical and lumbar stenosis with spondylosis of multiple 
 
            levels.  It was recommended he undergo massage therapy, and 
 
            he was prescribed Clonavepam (Jt. Ex. 1, page 28).
 
            
 
                 After repeated physical therapy, water therapy and 
 
            epidural injections, Dr. DuBois formed the following opinion 
 
            on May 16, 1991:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    Mr. Brown does seem to have cervical and spinal 
 
                 stenosis and degenerative changes with 
 
                 spondylosis.  I believe that the features here are 
 
                 compatible with his complaints that have persisted 
 
                 over many years.  Undoubtedly, exacerbations with 
 
                 lifting and high levels of work activity have 
 
                 taken place over the years.  He reports that on 
 
                 February 8, 1989, he had such an exacerbation.
 
            
 
                    ...I do believe he is capable of the limited 
 
                 walking that is required of his job at the moment 
 
                 and the primary restriction should be limiting him 
 
                 from lifting beyond 25 to 30 pounds at a maximum 
 
                 on a single user basis and 15 to 20 pounds on a 
 
                 repetitive basis....With these types of 
 
                 individuals, I think they have to be considered 
 
                 permanent restrictions as this process is not 
 
                 going to clear on its own.
 
            
 
                    Patients can get adaptations to the dysfunction 
 
                 and spondylosis can become less inflammatory 
 
                 particularly with the steriod [sic] and anti-
 
                 inflammatory treatments we are currently pursuing.  
 
                 I believe that he will need such further 
 
                 treatments and he should stay in a very protracted 
 
                 if not permanent course of exercise; the water 
 
                 therapy is quite good and I think these type of 
 
                 treatments are the thing that has helped these 
 
                 patients the most.
 
            
 
                    ....
 
            
 
                    In regards to disability rating, we are using a 
 
                 reference guidelines to evaluation of prone [sic] 
 
                 impairment, 3rd edition.  This is a very complex 
 
                 situation because of the multitude of sites and in
 
                 volvements here.  I'll attempt to delineate them.  
 
                 In reference to Dr. Eidbo's evaluation of 35 to 40 
 
                 percent, it also had division between different 
 
                 segments.  Reference to that area is suggested.
 
            
 
                    Combining these values using the combined 
 
                 values chart yielded a total combined value 
 
                 permanent of whole person disability of 34 
 
                 percent.
 
            
 
            (Jt. Ex. 1, pp. 20-21)
 
            
 
                 Dr. DuBois modified the restrictions in June of 1991, 
 
            stating that claimant was to do no repetitive stooping, 
 
            bending, squatting, and no lifting greater than 25 pounds.  
 
            He rescinded the restriction of no kitchen duty (Jt. Ex. 1, 
 
            p. 4).  Claimant continued to undergo hydrotherapy, and also 
 
            began therapy with Dianne Alber to enable him to cope with 
 
            the pain and work activities (Jt. Ex. 1, pp. 1-2).
 
            
 
                 Finally, the most recent report from Dr. DuBois, dated 
 
            July 17, 1991, indicates that claimant suffers from 
 
            polyarthralgias with cervical lumbar pain.  He recommended 
 
            that claimant set up an appointment with a rheumatologist, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            and be evaluated at the spinal clinic in Iowa City, Iowa 
 
            (Jt. Ex. 1, p. 3).
 
            
 
                 Claimant has had a long history of physical problems.  
 
            In 1956, he sustained an injury to his low back while 
 
            lifting heavy pots onto and off of a stove.  He was under a 
 
            doctor's care for approximately one week.  Apparently, no 
 
            permanent impairment resulted from this episode.
 
            
 
                 In 1964, claimant "strained" his lower back, and was 
 
            hospitalized for one to two weeks.  He received heat 
 
            treatment and prescription medications, and was off of work 
 
            for a limited amount of time.
 
            
 
                 In 1977, claimant fractured his wrist, and in 1978, 
 
            claimant strained stomach muscles.
 
            
 
                 Most germane to these proceedings is a 1981 accident in 
 
            which claimant injured his low back.  At the time of the 
 
            injury, claimant was working as a custodian for the Des 
 
            Moines Public School District, and received a special case 
 
            settlement.
 
            
 
                 In an effort to secure the settlement, claimant relied 
 
            upon an impairment rating given by Walter Gidbo, M.D., who 
 
            assessed claimant's functional loss at 35-40 percent (Jt. 
 
            Ex. 1, pp. 361-368).
 
            
 
                 After the settlement, claimant attempted to secure 
 
            employment with the school district.  Claimant testified 
 
            that he was not seeking custodial work because he was unable 
 
            to perform the duties required by this type of position.  A 
 
            letter from the school district suggests otherwise (Jt. Ex. 
 
            12, pp. 1-2).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Defendants deny that claimant sustained an injury which 
 
            arose out of and in the course of his employment on 
 
            September 17, 1987, and October 9, 1989.  Claimant states 
 
            that he is not asking for healing period benefits for the 
 
            first two injuries, September 17, 1987, and August 10, 1988.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries which arose out of 
 
            and in the course of his employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Although claimant filed five separate petitions, at the 
 
            time of the hearing, he argued that he did not seek healing 
 
            period benefits for the first two injuries.  Defendants deny 
 
            the first injury of September 17, 1987.
 
            
 
                 The greater weight of the evidence shows that claimant 
 
            was performing his job duties in a manner consistent with 
 
            the demands of his position.  He was working the hours 
 
            required by the employer.  As a result, it is found that 
 
            claimant's injury of September 17, 1987 arose out of and in 
 
            the course of his employment.
 
            
 
                 Claimant also argues that the February 9, 1989 injury 
 
            is the most serious and caused claimant to sustain a 
 
            permanent loss.  He argues that the last two injury dates of 
 
            October 9, 1989 (an injury for which defendants deny 
 
            liability) and February 15, 1990 merely exacerbated 
 
            claimant's condition.
 
            
 
                 Again, the greatest weight of the evidence supports 
 
            claimant's argument.  Any permanent partial disability 
 
            benefits will be awarded due to the February 9, 1989 injury.
 
            
 
                 The next issue to be addressed is whether claimant 
 
            sustained any permanent disability due to the work-related 
 
            injuries.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that he has sustained a 
 
            permanent disability due to any work-related accident.  See 
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The opinion of experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson, 217 N.W.2d 
 
            531, 536.  To establish compensability, the injury need only 
 
            be a significant factor, not be the only factor causing the 
 
            claimed disability.  Blacksmith v. All-Amnerican, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an em
 
            ployer'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).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
            613, 106 N.W.2d 591.  See also Barz v. Oler, 257 Iowa 508, 
 
            133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 As discussed under the Facts section, there is no 
 
            question that claimant has had a history of back problems.  
 
            However, he was able to perform unnecessary duties mandated 
 
            by his position with the Iowa Women's Reformatory from 1983 
 
            until his work-related accident in September 1987.  Since 
 
            that accident, and the subsequent incidents at work, 
 
            claimant has been unable to perform his duties in full 
 
            capacity.  As a result, it is found that claimant has 
 
            sustained a permanent disability from the work-related 
 
            injuries.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 As claimant has sustained injuries to his shoulder and 
 
            back, his disability will be evaluated as an industrial 
 
            disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251.  Barton v. 
 
            Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has been treated by a multitude of doctors, 
 
            and has been diagnosed as having several distinct problems 
 
            with his low back.  Included in the diagnoses are fibrositis 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            syndrome, which is myofascial pain syndrome, as well as a 
 
            narrowing of the spine.  Claimant has returned to his 
 
            position as a supervisor of the food service department at 
 
            the reformatory.  He has experienced no loss of actual 
 
            earnings.
 
            
 
                 At the time of the hearing, claimant was 56 years of 
 
            age and is on the declining end of earning years.  he has 
 
            endured a prolonged period of medical treatment and 
 
            recuperation, but he has not had any invasive treatment.  
 
            Claimant appeared to be average in intellect, and his 
 
            emotional well-being is normal, although there is evidence 
 
            which suggests he magnifies his physical problems.
 
            
 
                 Claimant must work under some restrictions, as set out 
 
            by Dr. DuBois.  And, although Dr. DuBois specifically 
 
            instructed that claimant was able to return to work in the 
 
            kitchen on his regular job duties, it is possible that 
 
            claimant's duties may require him to lift objects that weigh 
 
            more than he is able to comfortably lift.  Defendants have 
 
            accommodated claimant's physical restrictions, and they are 
 
            encouraged to continue instituting accommodations necessary 
 
            to allow claimant to continue with his position at the 
 
            reformatory.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a 10 percent loss of earning capacity.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant sustained injuries which arose out of and 
 
            in the course of his employment on September 17, 1987, and 
 
            October 9, 1989.
 
            
 
                 That the only injury which resulted in any permanent 
 
            loss was that injury of February 9, 1989.
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits for time off of work during the time period between 
 
            February 9, 1989 and May 16, 1991, at the rate of three 
 
            hundred thirty-three and 81/100 dollars ($333.81) per week.
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability payments for fifty (50) weeks at the workers' 
 
            compensation rate of three hundred thirty-three and 81/100 
 
            dollars ($333.81) per week beginning May 17, 1991.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set for 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 claim activity reports upon 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            payment of the award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
            
 
                 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                   1803
 
                                   Filed April 24, 1995
 
                                   LARRY P. WALSHIRE
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
JAMES E. BROWN, JR.,      
 
                                       File Nos. 1052984
 
     Claimant,                                    909859
 
            
 
vs.                                  A R B I T R A T I O N
 
            
 
IOWA STATE WOMEN'S REFORMATORY,             A N D
 
            
 
     Employer,                           R E V I E W -
 
            
 
and                                   R E O P E N I N G
 
            
 
STATE OF IOWA,                        D E C I S I O N
 
            
 
     Insurance Carrier,    
 
     Defendant.       
 
________________________________________________________________
 
1803 - Extent of disability case
 
A rather odd policy of disciplining a state employee for injuring 
 
himself when he was performing job duties within his physician imposed 
 
restrictions was not found to be compensable until such time as such a 
 
policy results in an actual loss of job or pay.  Although claimant's 
 
fears of losing his job may be justified given such a policy, claimant 
 
to date has been only reprimanded.  It would be speculative to assess 
 
loss of earning capacity from any future implementation of such a 
 
disciplinary policy.
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed October 31, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES E. BROWN, JR.,          :
 
                                          :     File Nos. 909859
 
                 Claimant,                :               941719
 
                                          :               894653
 
            vs.                           :               864419
 
                                          :               946038
 
            IOWA STATE WOMEN'S            :
 
            REFORMATORY,                  :
 
                                          :     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.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Claimant had a history of back problems, but none 
 
            diminished his ability to work.
 
            He sustained a series of soft tissue injuries while working 
 
            as a kitchen supervisor.
 
            Based on his age (56) and job duties, and the fact that the 
 
            employer maintained him as an employee and accommodated his 
 
            physical limitation, claimant was awarded 10 percent 
 
            permanent partial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JAMES R. SCHRADER,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 909973
 
         WAUKASHA ENGINE DIVISION -      
 
         DRESSER INDUSTRIES, INC.,                 A P P E A L
 
                     
 
              Employer,                          D E C I S I O N
 
                     
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE CO.,  
 
                     
 
              Insurance Carrier,    
 
              Defendants.     
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 27, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1994.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James L. Pillers
 
         Attorney at Law
 
         Executive Plaza Building
 
         1127 North 2nd Street
 
         Clinton, Iowa  52732
 
         
 
         Mr. Mark Woollums
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East 3rd Street
 
         Davenport, Iowa  52801-1596
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                     5-1108.50; 5-1803; 5-2206; 5-3800
 
                                     Filed January 31, 1994
 
                                     BYRON K. ORTON
 
                                          
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES R. SCHRADER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 909973
 
            WAUKASHA ENGINE DIVISION -      
 
            DRESSER INDUSTRIES, INC.,               A P P E A L
 
                        
 
                 Employer,                        D E C I S I O N
 
                        
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE CO.,  
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1108.50; 5-1803; 5-2206
 
            Claimant awarded 25 percent permanent partial disability 
 
            where he had worked until the plant closing but had ongoing 
 
            complaints since the date of injury approximately 10 months 
 
            prior to the plant closing.
 
            
 
            5-3800
 
            Interest on permanent partial disability awarded from end of 
 
            healing period.
 
            
 
 
            
 
         
 
                               
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAMES R SCHRADER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 909973
 
            WAUKESHA ENGINE DIVISION -    :
 
            DRESSER INDUSTRIES, INC.,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by James R. 
 
            Schrader against his former employer based upon an injury 
 
            that occurred on February 15, 1989.  According to the form 
 
            2A filed May 1, 1989, Schrader was paid weekly compensation 
 
            through March 19, 1989, with the last payment having been 
 
            paid on March 27, 1989.  Schrader now seeks to recover 
 
            permanent partial disability compensation based upon that 
 
            admitted injury.  Defendants asserted that his claim was 
 
            untimely under the provisions of Code section 85.26 but the 
 
            defense is totally frivolous since the petition in this case 
 
            was filed on February 24, 1992, a date which is clearly less 
 
            than three years following the date that weekly compensation 
 
            benefits were last paid as shown by the report filed by 
 
            defendants.  
 
            
 
                 The case was heard at Davenport, Iowa, on May 18, 1993.  
 
            The record consists of testimony from James Schrader and 
 
            jointly offered exhibit 1 through 12.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 James Schrader is a 53-year-old married man who lives 
 
            at Clinton, Iowa.  He is a high school graduate but has no 
 
            further formal education.  Most of his work history has been 
 
            in factories operating industrial machines.  He has some 
 
            experience working in an agricultural feed mill where he 
 
            ground feed and as a maintenance person in a hospital.
 
            
 
                 Schrader commenced employment with Waukesha Engine 
 
            Division in 1978.  Over the years he held a number of 
 
            different positions.  His principle activity over the years 
 
            was operating mill machines.
 
            
 
                 Schrader was injured on February 15, 1989, when a metal 
 
            stand which was heavily loaded lost the support of spring 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            devices and dropped to the floor, pulling Schrader along 
 
            with it.  Schrader experienced an immediate sharp pain in 
 
            his upper back between his shoulder blades.  Schrader 
 
            testified at hearing that he had not experienced pain in his 
 
            upper back prior to that date.  In 1980 and perhaps 1981, he 
 
            had low back problems (exhibit 1, pages 4-5; ex. 10).  There 
 
            is nothing in the record which indicates that Schrader had 
 
            upper back pain prior to the incident which is the subject 
 
            of this case.
 
            
 
                 Immediately following the injury Schrader was taken off 
 
            work and treated conservatively.  He was released to return 
 
            to work in mid-March 1989.  He returned to work as a lead 
 
            person.  The work was lighter than what he had performed 
 
            earlier in his career with this employer.  Over the years, 
 
            lifting assistance devices had gradually been placed in the 
 
            plant and Schrader felt he could have performed his usual 
 
            job even if he had not been made a lead person.  Schrader 
 
            continued to work until the plant closed on or about 
 
            December 21, 1989.  Schrader then drew unemployment 
 
            compensation.
 
            
 
                 When the February 15, 1989 injury occurred, diagnostic 
 
            tests were conducted which showed claimant had a compression 
 
            fracture of his T12 vertebra.  There was some question 
 
            whether the fracture was of recent origin.  A bone scan test 
 
            was interpreted as being normal (ex. 2, p. 5; ex. 3, p. 2).  
 
            The treatment notes indicate that the area of tenderness was 
 
            around T12-L1, the lower thoracic and upper lumbar spine 
 
            areas (ex. 1, p. 24).  It is noted that this is precisely 
 
            the same area as where the compression fracture had been 
 
            identified.  
 
            
 
                 Xerxes R. Colah, M.D., the treating orthopedic surgeon, 
 
            interpreted the bone scan as suggesting that the compression 
 
            fracture was an older injury (ex. 1, p. 24).  On May 1, 
 
            1990, Schrader was seen by D.G. Wolf, M.D., for purposes of 
 
            a physical examination.  The notes state that there are no 
 
            real problems except for with his back and with his foot for 
 
            which he is trying to get disability.
 
            
 
                 Claimant was referred to William R. Irey, M.D., an 
 
            orthopedic surgeon located in the quad cities.  There is 
 
            considerable confusion in Dr. Irey's records.  Dr. Irey 
 
            interprets the x-rays which were provided to him on November 
 
            15, 1990, as showing a compression fracture at T6 (ex. 2, p. 
 
            6).  His impression of the case included degenerative 
 
            arthritis of the midthoracic spine (ex. 2, p. 7).  Physical 
 
            therapy only provided transient relief.  A back brace 
 
            provided no overall improvement (ex. 2, pp. 7-8).  In a note 
 
            dated April 22, 1991, Dr. Irey states that the x-rays which 
 
            he observed were dated in 1981 and all were essentially 
 
            normal as far as the thoracic spine was concerned.  He goes 
 
            on to state, "There is compression noted as the lower end of 
 
            the thoracic spine, either at T12 or about L1.  The vertebra 
 
            is compressed to about 2/3 it's [sic] normal height.  This 
 
            does not correspond with the area in question at this time."  
 
            Dr. Irey had nothing further to offer in the way of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            aggressive care for Schrader's back (ex. 2, p. 8).  Dr. Irey 
 
            continued to speak of the T6 area when he was deposed (ex. 
 
            12, p. 10).  In that same deposition Dr. Irey again 
 
            confirmed that claimant's  complaints did not correspond to 
 
            a fracture of T12 (ex. 12, p. 17).  Dr. Irey's initial 
 
            impression was that claimant had degenerative arthritis of 
 
            the midthoracic spine (ex. 12, p. 11).  
 
            
 
                 Based upon a history that claimant's upper back had not 
 
            been symptomatic prior to the February 15, 1989 injury, Dr. 
 
            Irey reported that the claimant's current back problems are 
 
            directly related to the injury of February 15, 1989 (ex. 2, 
 
            p. 3).  He goes on to acknowledge that the injury probably 
 
            did not produce all of the claimant's back problems as there 
 
            were chronic underlying difficulties with the spine that 
 
            were exacerbated by the injury (ex. 2, p. 3).  Dr. Irey 
 
            confirmed that opinion when he was deposed (ex. 12, pp. 21, 
 
            28).  Dr. Irey has recommended that claimant limit his 
 
            activities in view of the condition of his spine (ex. 2, p. 
 
            1; ex. 12, pp. 23-24).
 
            
 
                 Dr. Colah is unable to causally connect claimant's 
 
            problems to any particular incident but he did rate claimant 
 
            as having a 3 percent impairment of the whole person (ex. 5, 
 
            p. 1).
 
            
 
                 The record made in this case does not show it to be 
 
            probable that a compression fracture at T12 or T6 was caused 
 
            by the February 15, 1989 injury.  The evidence from the bone 
 
            scan is a strong indication that it preexisted.  There is 
 
            some question regarding whether there are one or two 
 
            compression fractures.  Dr. Irey was never questioned 
 
            concerning the basis for his testimony about the T6 and 
 
            midthoracic area of claimant's spine.  It is not known 
 
            whether the doctor simply misspoke or whether the original 
 
            injury affected the lower thoracic spine at the T12 level or 
 
            whether an intervening problem has arisen at the T6 and 
 
            midthoracic level of claimant's spine.  It is of particular 
 
            significance that on two separate occasions Dr. Irey related 
 
            that the compression fracture at T12 was not in the same 
 
            area as the area which was currently symptomatic.  Despite 
 
            this, Dr. Irey steadfastly opines that there is a causal 
 
            connection between the 1989 injury and the current symptoms 
 
            and complaints.  Dr. Irey seems to base his opinion upon the 
 
            claimant's statement that his upper back was not symptomatic 
 
            prior to the 1989 injury and that it has been symptomatic 
 
            since then.  Claimant's appearance and demeanor was observed 
 
            as he testified at hearing.  His statements regarding the 
 
            onset of his back problems and their continuation are 
 
            accepted as being correct.  Dr. Irey's assessment is 
 
            therefore likewise accepted as being correct.  It is found 
 
            that the February 15, 1989 injury was a substantial factor 
 
            in bringing about the complaints and physical limitations 
 
            which currently afflict James Schrader.  In all likelihood 
 
            the February 15, 1989 injury was an exacerbation of a 
 
            previously latent underlying condition.  
 
            
 
                 The fact that claimant resumed work and continued to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            work until the plant closed would normally be an indication 
 
            that he had made a full recovery but in this case the nature 
 
            of the work and the nature of his complaints is such that it 
 
            is not a strong indicator of recovery.
 
            
 
                 Schrader has retained part-time employment since the 
 
            plant closed.  He has not obtained any replacement full-time 
 
            employment.  His area of work search has not included the 
 
            quad cities area.  It should be noted that it is not unusual 
 
            for individuals to live in Clinton and work in the quad 
 
            cities.  The only activity restrictions found in the record 
 
            of this case come from Dr. Irey.  Claimant has self-imposed 
 
            restrictions.  Some of the jobs for which claimant has 
 
            applied are beyond his physical capabilities.  
 
            
 
                 The record of this case does not compare the claimant's 
 
            physical capacity as it existed immediately prior to the 
 
            1989 injury with the level of capacity with existed 
 
            immediately following recuperation from that injury or at 
 
            the present time.  By claimant's own statement he could have 
 
            performed his regular job following recuperation from the 
 
            injury even if he had not been made a lead person.  The 
 
            evidence does not show his physical capacity to have changed 
 
            as a result of the February 15, 1989 injury other than by 
 
            his own statements.  The evidence does not show either a 
 
            compression fracture or degenerative changes to have 
 
            resulted from the 1989 injury.  It appears to be those 
 
            conditions which are responsible for the majority of the 
 
            physical complaints and the activity restrictions which have 
 
            been medically recommended.  On the other hand, claimant's 
 
            back was not symptomatic prior to the occurrence of the 
 
            injury.  It is those symptoms which led Schrader to obtain 
 
            medical care and led to the disclosure of the existence of 
 
            those preexisting conditions.  Prior to that time there had 
 
            been no restrictions on his activities since the underlying 
 
            conditions were asymptomatic and he had no reason to consult 
 
            a physician about his back.  It is therefore found that the 
 
            February 15, 1989 injury was a substantial factor in making 
 
            Schrader's back symptomatic and in bringing about the need 
 
            for the imposition of the activity restrictions which have 
 
            been recommended.
 
            
 
                 Schrader is at an age when substantial retraining is 
 
            not a particularly viable option though short retraining 
 
            could very well be a reasonable consideration.  By the same 
 
            token he is not within the range of normal retirement age.  
 
            Much of the reason for his current unemployment is the fact 
 
            that the employer in this case closed its plant.  A 
 
            considerable number of individuals were then placed into the 
 
            position of searching for jobs.  In view of the limited 
 
            population in the Clinton, Iowa, geographical area, it is to 
 
            be expected that those laid off employees would have 
 
            difficulty finding replacement work, particularly work which 
 
            presents a comparable level of pay and benefits.  It would 
 
            be expected that even the perfectly healthy would have 
 
            difficulty finding comparable jobs.  It is determined that 
 
            Schrader sustained a 25 percent loss of earning capacity, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            primarily in the area of loss of access to jobs, as a result 
 
            of the February 15, 1989 injury.  
 
            
 
                               CONCLUSIONS OF LAW
 
 
 
                 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).
 
            
 
                 Dr. Irey provides the evidence of causal connection 
 
            which allows the claimant to prevail in this case.  
 
            
 
                 Since 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 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 The claimant's current employment status is not an 
 
            accurate indicator of his actual earning capacity.  His work 
 
            search has been less than aggressive.  The nature of his 
 
            injury was not particularly severe.  When all pertinent 
 
            factors of industrial disability are considered, it is 
 
            determined that James Schrader experienced a 25 percent 
 
            permanent partial disability under the provisions of section 
 
            85.34(2)(u) of the Code as a result of the February 15, 1989 
 
            injury.
 
            
 
                 Compensation for permanent partial disability is 
 
            payable commencing at the end of the hearing period.  
 
            Section 85.34(2); Bevins v. Farmstead Foods, file numbers 
 
            834865, 877458, 881784, & 888705 (App. November 26 1991); 
 
            Benson v. Good Samaritan Center, file number 765734, 
 
            ruling on rehearing October 18, 1989; Brittain v. Fisher 
 
            Controls, file number 669180, ruling on rehearing November 
 
            20, 1989; Brinks v. Case Power and Equipment, file number 
 
            843233 (App. Dec. April 18, 1990); petition by Irving A. 
 
            Marrow, declaratory ruling February 22, 1993.  
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            compensation was therefore payable commencing on March 20, 
 
            1989, the day after the healing period ended.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay James R. 
 
            Schrader one hundred twenty-five (125) weeks of compensation 
 
            for permanent partial disability at the stipulated rate of 
 
            three hundred seven and 75/100 dollars ($307.75) per week 
 
            payable commencing March 20, 1989.  The entire amount 
 
            thereof is past due and owing and shall be paid to claimant 
 
            in a lump sum together with interest pursuant to section 
 
            85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James L Pillers
 
            Attorney at Law
 
            Executive Plaza Bldg
 
            1127 N. 2nd St.
 
            Clinton, Iowa  52732
 
            
 
            Mr. Mark Woollums
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport, Iowa  52801-1596
 
            
 
                  
 
            
 
 
            
 
        
 
            
 
            
 
            
 
                                               51108.50 51803 52206
 
                                               Filed July 27, 1993
 
                                               Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES R SCHRADER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 909973
 
            WAUKESHA ENGINE DIVISION -    
 
            DRESSER INDUSTRIES, INC.,     
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
            
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51108.50 51803 52206
 
            Claimant awarded 25 percent permanent partial disability 
 
            where he had worked until the plant closing but had ongoing 
 
            complaints since the date of injury approximately 10 months 
 
            prior to the plant closing.
 
            
 
            53800
 
            Interest on permanent partial disability awarded from end of 
 
            healing period.