Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN REISCH,                  :
 
                                          :
 
                 Claimant,                :         File No. 910198
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            FDL FOODS, INC.,              :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by John C. 
 
            Reisch against FDL Foods, Inc., his employer, based upon an 
 
            alleged injury of July 8, 1988.  The date of injury which 
 
            was alleged was amended at hearing to conform to the proof.  
 
            Claimant seeks to recover compensation for healing period 
 
            and permanent partial disability.  The primary issues to be 
 
            determined are whether claimant's back condition is the 
 
            result of an injury which arose out of and in the course of 
 
            his employment.  In the event that the employment 
 
            relationship is found, the remaining issue is the extent of 
 
            permanent partial disability.
 
            
 
                 The case was heard and fully submitted at Dubuque, Iowa 
 
            on November 7, 1990.  The record in the proceeding consists 
 
            of claimant's exhibits 1 through 8, defendant's exhibits A 
 
            through F, and H through K.  The record also contains 
 
            testimony from John C. Reisch.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 John C. Reisch is a 55-year-old man who is presently 
 
            employed at FDL Foods, Inc., where he has been employed 
 
            since 1953.  Prior to 1982, the name of the employer was 
 
            Dubuque Pack.  Reisch has high seniority which is sufficient 
 
            to allow him to obtain and hold nearly any job which he 
 
            desires.  At the time of hearing, he was in a higher paying 
 
            bracket of job than the one he was performing in July of 
 
            1988.
 
            
 
                 John is a high school graduate.  His prior work history 
 
            includes painting houses.  Most of his work has involved 
 
            manual labor.  In July of 1988 he was unmarried, but had a 
 
            17-year-old son whom he considered to be a dependent and for 
 
            whom he provided support.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                 John has a history of back problems going back as far 
 
            as 1975 (claimant's exhibit 5, pages 34, 36 and 37).
 
            
 
                 On the Sunday night following July 8, 1988, John 
 
            experienced the onset of severe pain in his right hip.  He 
 
            could not think of anything which he had done over the 
 
            weekend to cause the problem, but he had driven from Dubuque 
 
            to the Wisconsin Dells, stayed overnight at a motel and then 
 
            returned to Dubuque on Sunday.  John sought medical 
 
            treatment, was diagnosed as having a herniated lumbar disc 
 
            and underwent surgery which was performed by orthopaedic 
 
            surgeon Gerald L. Meester, M.D. (defendant's exhibit D).  
 
            John eventually recuperated from the surgery and was 
 
            released to return to work.  He carries a permanent 
 
            restriction against lifting more than 10 or 15 pounds 
 
            (claimant's exhibit 7, page 8).  Dr. Meester has rated him 
 
            as having a 10 percent permanent impairment of the body as a 
 
            whole based upon his back condition and surgery (claimant's 
 
            exhibit 7, page 9).
 
            
 
                 At hearing, John testified that on approximately June 1 
 
            or May 31, 1988, he had slipped into a window well at home 
 
            and experienced pain in his groin area.  He did not miss 
 
            work due to the problem and stated that the pain went away 
 
            within a few days.
 
            
 
                 John testified at hearing that, on July 8, 1988, a 
 
            machine which he normally operated at work was 
 
            malfunctioning and that it was necessary for him to carry 
 
            boxes weighing over 80 pounds across the room where he 
 
            worked in order to band them.  John stated that, on Saturday 
 
            following that exertion, he had back muscle spasms which 
 
            made it hard for him to bend over or straighten up.
 
            
 
                 Claimant was initially seen by his family physician.  
 
            The history he gave consisted of severe pain in his right 
 
            hip and leg which had its onset with a car trip taken that 
 
            weekend (defendant's exhibit A, page 1).  A second history 
 
            from July 12, 1988 relates that claimant stepped into a hole 
 
            on the first of June while at home.  The note indicates that 
 
            he developed intense pain in the back and down the right 
 
            leg, but that it improved until the pain recurred on Sunday 
 
            (defendant's exhibit B, page 2).
 
            
 
                 Claimant was referred to orthopaedic surgeon Gerald 
 
            Meester, M.D.  The history given to Dr. Meester was that 
 
            claimant had injured his right hip when he slipped into a 
 
            window well during early June and that the pain had 
 
            progressed.
 
            
 
                 Dr. Meester has expressed the opinion that work in the 
 
            nature of carrying 80-pound boxes could certainly aggravate 
 
            a low back condition, but that according to his records and 
 
            the medical history which he has recorded, there is nothing 
 
            to indicate that claimant had performed those activities 
 
            (defendant's exhibit E, pages 7 and 8; exhibit 7, pages 4, 
 
            5, 9, 10 and 11).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The evidence in this case is somewhat conflicting with 
 
            regard to the immediate medical history preceding the onset 
 
            of claimant's symptoms.  It is particularly noted that the 
 
            severe symptoms did not have their onset until Sunday 
 
            evening after claimant had engaged in a considerable amount 
 
            of driving.  The initial medical history indicates that back 
 
            pain had been present for approximately the preceding two 
 
            weeks (defendant's exhibit A, page 1).  According to Dr. 
 
            Meester, activity of carrying such as claimant described at 
 
            hearing could aggravate a back condition.  The factual issue 
 
            which is determinative in this case is whether or not an 
 
            aggravation from carrying while at work was a substantial 
 
            factor in producing the onset of claimant's severe symptoms, 
 
            the need for surgery and his resulting physical impairment 
 
            and disability.
 
            
 
                 It is determined that the evidence in this case is at 
 
            equipoise.  John Reisch appeared to be quite forthright and 
 
            honest as he testified.  The record, however, contains three 
 
            medical histories, namely that of two weeks of back pain 
 
            followed by severe pain which started while taking a car 
 
            trip; pain which had its onset from stepping in a window 
 
            well and then recurred without any apparent aggravating 
 
            cause; or, as claimant asserts, his pain was precipitated by 
 
            heavy lifting and carrying at work two days prior to the 
 
            onset of his severe symptoms.  It would be understandable if 
 
            one physician had obtained an incorrect history, but the 
 
            others were consistent with the claimant's testimony.  That 
 
            is not the case here, however.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 8, 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 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 result of this case turns upon the requirement to 
 
            carry the burden of proof by a preponderance of the 
 
            evidence.  It is certainly possible that John Reisch injured 
 
            his back at work in the manner which he asserted at hearing.  
 
            It is also possible, however, that the carrying he performed 
 
            on July 8, 1988 is not responsible for his back problems.  
 
            He had a prior history of some back difficulties.  The act 
 
            of riding long distances in a car has itself been known to 
 
            aggravate a back condition.  The history of two weeks of 
 
            back pain prior to the July 12, 1988 office visit detracts 
 
            from claimant's claim.
 
            
 
                 It is determined that John Reisch has failed to prove 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            by a preponderance of the evidence that it is probable that 
 
            his back surgery and resulting disability was proximately 
 
            caused by the work activities he performed on July 8, 1988.  
 
            While it is certainly feasible and possible for the sequence 
 
            of events to have occurred as claimant asserts, the 
 
            evidence, when viewed as a whole, fails to show it to be 
 
            probable.
 
            
 
                 Since claimant has failed to prove that his back 
 
            condition is the result of an injury which arose out of and 
 
            in the course of his employment, he is not entitled to 
 
            receive any recovery in this claim.
 
            
 
                                      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 pursuant 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza
 
            Suite 216
 
            Dubuque, Iowa  52001
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30
 
                           Filed November 19, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN REISCH,   :
 
                      :
 
                 Claimant, :         File No. 910198
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            FDL FOODS, INC.,    :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Where the evidence showed three possible sources for the 
 
            aggravation of the claimant's preexisting back condition, 
 
            and only one of those three had a work relationship, it was 
 
            held that the claimant had failed to prove that the 
 
            condition was an injury which arose out of and in the course 
 
            of his employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MERLE FAWCETT,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 910205
 
            CUNNINGHAM HEATING,   
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            ALLIED MUTUAL INSURANCE,   
 
                        
 
                 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 June 21, 1991 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 November, 1992.
 
            
 
            
 
            
 
                                    ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                            9998
 
                                            Filed November 25, 1992
 
                                            Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MERLE FAWCETT,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 910205
 
            CUNNINGHAM HEATING,   
 
                                                   A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            ALLIED MUTUAL INSURANCE,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 21, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE FAWCETT,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910205
 
            CUNNINGHAM HEATING,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Merle 
 
            Fawcett, claimant, against Cunningham Heating, employer, and 
 
            Allied Mutual Insurance Company, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on November 19, 1988.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of claimant's 
 
            testimony and joint exhibits 1-2.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated May 
 
            16, 1991, the parties have stipulated as follows:
 
            
 
                 1.  That claimant sustained an injury on November 19, 
 
            1988, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  That the injury is a cause of temporary and 
 
            permanent disability;
 
            
 
                 3.  That claimant has been paid 26 weeks of healing 
 
            period benefits;
 
            
 
                 4.  That the extent of claimant's entitlement to weekly 
 
            compensation for permanent disability has been stipulated to 
 
            be 60 weeks for a scheduled member injury to the upper 
 
            extremities which converts to a functional impairment of 12 
 
            percent to the body as a whole; and,
 
            
 
                 5.  That the claimant's rate of weekly compensation is 
 
            stipulated to be $178.56.
 
            
 
                 The remaining issues to be decided include:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 1.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27;
 
            
 
                 2.  Whether claimant's unpaid medical expenses are 
 
            causally connected to his work injury of November 19, 1988; 
 
            and,
 
            
 
                 3.  Whether such expenses were authorized by 
 
            defendants.
 
            
 
                 The parties do not dispute that the charges for the 
 
            medical services or supplies rendered to claimant are fair 
 
            and reasonable and that such expenses were incurred for 
 
            reasonable and necessary medical treatment.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            exhibits contained herein and makes the following findings:
 
            
 
                 Claimant testified that he sustained bilateral 
 
            fractures of his wrists on November 19, 1988, when he fell 
 
            approximately 15 feet off scaffolding.  He was treated by 
 
            Bradley R. Adams, D.O., who performed surgery.  He testified 
 
            that defendants paid for all medical treatment and surgery 
 
            in November 1988.  In May 1989, he underwent carpal tunnel 
 
            release of the left upper extremity by Dr. Adams which was 
 
            also paid for by defendants.  He was released to return to 
 
            work on June 16, 1989.  He worked for defendants until 
 
            September 11, 1989.  Defendants paid all of his medical 
 
            bills through September 1989.  Claimant then worked as a hog 
 
            feeder in a confinement operation; sanitation truck driver; 
 
            and trucker.  Claimant has been employed as a truck driver 
 
            with Steel Trucking Company since November 1990.
 
            
 
                 Claimant testified that he has had continuous problems 
 
            with his wrists and arms and physicians have recommended 
 
            additional surgery.  It is his contention that his current 
 
            problems are the result of his previous injury and that his 
 
            medical expenses after September 1989, have been for 
 
            treatment of these problems and should be paid for by 
 
            defendants.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant submitted a list of outstanding medical bills which 
 
            have not been paid for by defendants.  They include as 
 
            follows:
 
            
 
                 Date                  Provider                        
 
            Amount
 
            
 
               04-09-90      Medicap Pharmacy                         $ 
 
            59.85
 
               04-17-90      Des Moines Orthopaedic Surgeons           
 
            205.00
 
               09-04-90      Mahaska County Hospital                    
 
            72.00
 
               09-04-90      Radiology Associates of Ottumwa, P.C.      
 
            13.50
 
               10-08-90      Iowa Institute of Orthopaedics            
 
            160.00
 
                                                    Total             
 
            $510.35
 
            
 
                 The record indicates that claimant saw Dr. Adams on 
 
            April 9, 1990, with complaints of right glenoscapular 
 
            shoulder pain.  He related that he had to do a lot of 
 
            pushing, lifting and carrying as a hog feeder.  Dr. Adams 
 
            diagnosed "myofascial strain" and prescribed Flexeril and 
 
            Voltaren (Ex. 1, page 6).  The Medicap Pharmacy bill for 
 
            $59.85 pertains to the prescription drugs prescribed by Dr. 
 
            Adams (Ex. 2, p. 8).
 
            
 
                 On April 17, 1990, claimant presented to Delwin E. 
 
            Quencer, M.D., with complaints of right shoulder and upper 
 
            back pain.  A physical examination was performed and x-rays 
 
            were taken (Ex. 1, pp. 7-8).  Dr. Quencer's bill for his 
 
            services total $205.00 and is set out in exhibit 2, page 1.
 
            
 
                 On September 4, 1990, claimant was treated in the 
 
            emergency room of Mahaska County Hospital with complaints of 
 
            left arm pain at the site of the scar from the pin site as a 
 
            result of surgery performed on November 19, 1988.  
 
            Physician's notes indicate that claimant's complaints were 
 
            referable to chronic discomfort in the left wrist and 
 
            forearms with no recent injury.  X-rays of the left wrist 
 
            revealed an old fracture with residual degenerative disease 
 
            (Ex. 1, pp. 9-10).  The cost of emergency room treatment was 
 
            $72.00 and radiology expenses were $13.50 (Ex. 2, pp. 2-4).
 
            
 
                 On October 8, 1990, claimant presented to Dr. Adams 
 
            with continuing complaints of pain in the left wrist and 
 
            numbness involving the median nerve distribution of the left 
 
            hand.  After examination and x-rays, Dr. Adams concluded 
 
            that claimant has carpal tunnel syndrome.  He recommended 
 
            repeat EMG nerve conduction studies and an arthrogram to 
 
            check out suspected ligamentous disruption of the 
 
            scapholunate ligament in the left wrist (Ex. 1, pp. 11-12).
 
            
 
                 Claimant saw Dr. Adams for follow-up examination on 
 
            October 17, 1990, to inform him that the insurance company 
 
            refused to pay for his EMG nerve conduction studies (Ex. 1, 
 
            p. 13).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Adams submitted a bill to defendant insurance 
 
            carrier in the amount of $160.00 for the aforementioned 
 
            examination and    x-rays (Ex. 2, p. 6).
 
            
 
                                conclusions of law
 
            
 
                 The only issue to be determined in this case is whether 
 
            claimant is entitled to certain medical expenses under Iowa 
 
            Code section 85.27.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Defendants assert that claimant's outstanding medical 
 
            expenses totaling $510.35 are not causally connected to his 
 
            work injury of November 19, 1988, and therefore such 
 
            expenses are unauthorized.
 
            
 
                 Defendants argue that claimant was seen by Dr. Adams on 
 
            April 9, 1990, for complaints referable to shoulder pain as 
 
            a result of his work in a hog confinement operation.  They 
 
            also argue that claimant saw Dr. Quencer on April 17, 1990, 
 
            with the same complaints.  The record clearly reveals that 
 
            claimant's symptoms of right shoulder and upper back pain 
 
            developed as a result of his repetitive pushing activities 
 
            while working in the hog confinement operation.  
 
            Accordingly, claimant has not proven by a preponderance of 
 
            the evidence that the medical bills associated with the 
 
            symptoms are causally related to his injury on November 19, 
 
            1988, and therefore cannot be attributable to defendants.  
 
            Accordingly, the unpaid medical bills of $59.85 and $205.00 
 
            are not the responsibility of defendants.
 
            
 
                 Claimant's emergency room treatment on September 4, 
 
            1990, the x-rays taken pursuant to that treatment and 
 
            follow-up evaluation by Dr. Adams on October 8, 1990, 
 
            clearly relate to his original injury in November 1988.  
 
            Thus, defendants shall pay for services performed at Mahaska 
 
            County Hospital, Radiology Associates and Iowa Institute of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Orthopaedics.  The total unpaid balance for these bills is 
 
            $245.50.
 
            
 
                 Claimant requests that defendants pay for diagnostic 
 
            studies recommended by Dr. Adams including EMG nerve 
 
            conduction studies and an arthrogram as well as future 
 
            surgery if such is deemed necessary.  Since claimant's 
 
            ongoing problems are a result of his injury in November 
 
            1988, and since defendants have admitted liability for such 
 
            injury, claimant is entitled to medical care and treatment 
 
            causally related to that injury.  Accordingly, defendants 
 
            are liable for the diagnostic testing recommended by Dr. 
 
            Adams and, if necessary, surgery to treat his current 
 
            problems.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay disputed medical expenses of:
 
            
 
               09-04-90      Mahaska County Hospital                 $ 
 
            72.00
 
               09-04-90      Radiology Associates of Ottumwa, P.C.     
 
            13.50
 
               10-08-90      Iowa Institute of Orthopaedics           
 
            160.00
 
                                                         Total       
 
            $245.50
 
            
 
                 Defendants shall also pay for diagnostic testing 
 
            recommended by Dr. Adams including EMG nerve conduction 
 
            studies and an arthrogram and, if necessary, surgery on the 
 
            left wrist for possible carpal tunnel syndrome.
 
            
 
                 Costs of this action are assessed against defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this agency pursuant to rule 343 IAC 3.l.
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
            
 
                      ______________________________               JEAN 
 
            M. INGRASSIA
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa  IA  52577
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave
 
            Suite 3700
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108; 5-2500
 
                           Filed June 20, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE FAWCETT,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 910205
 
            CUNNINGHAM HEATING,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1108; 5-25004
 
            The only issue is liability for unpaid medical expenses and 
 
            entitlement to future medical treatment.
 
            Defendants liable for medical expenses incurred for 
 
            treatment of impairments causally related to original injury 
 
            and for diagnostic testing and surgery recommended by 
 
            treating physician.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY B. HOWARD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 910281
 
            vs.                           :
 
                                          :
 
            MIDWEST USA, INC.,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein the 
 
            claimant seeks compensation for 4.429 weeks of temporary 
 
            total disability and $804.55 in medical bills as a result of 
 
            an alleged injury that occurred on May 6, 1989.  The record 
 
            consists of claimant's exhibit A.
 
            
 
                 On August 22, 1989, defendant was sanctioned by Deputy 
 
            Larry Walshire, which sanction closed the record to further 
 
            evidence or activity by defendant.  The record indicates 
 
            that defendant has done nothing further in this case as a 
 
            defense and only wrote a letter, dated April 30, 1990, which 
 
            is meaningless for the purpose of this decision.
 
            
 
                 The undersigned takes official notice of the petition 
 
            filed by claimant through his attorney.  The undersigned 
 
            finds that claimant slipped and fell while loading 
 
            defendant's truck at Orange City, Iowa, on May 6, 1989, and 
 
            as a result fractured his right ankle and bruised the 
 
            cervical portion of his spine.  As a result of said injury, 
 
            claimant incurred only temporary total disability of 4.429 
 
            weeks.  Claimant incurred no other impairment or further 
 
            disability.
 
            
 
                 As a result of claimant's injury, claimant incurred 
 
            medical bills in the amount of $804.55.
 
            
 
                 At the time of his injury, claimant was earning gross 
 
            wages of $575 and, therefore, is entitled to a weekly 
 
            benefit rate of $359.22 per week for the 4.429 weeks that he 
 
            was temporary totally disabled.  The undersigned finds that 
 
            claimant's temporary total disability and medical bills were 
 
            causally connected to his May 6, 1989 injury and that said 
 
            injury arose out of and in the course of his employment.
 
            
 
                 Defendant did not in any way defend said action or 
 
            answer claimant's petition.  The status of the record for 
 
            the purposes of hearing shows that there are no issues that 
 
            are in dispute and that defendant is, in fact, in default as 
 
            to any issues or the claimed amount for which claimant is 
 
            requesting an award.  The undersigned finds that claimant is 
 
            entitled to $1,590.83 temporary total disability benefits 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and $804.55 medical benefits.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.32 provides:
 
            
 
                    Except as to injuries resulting in permanent 
 
                 partial disability, compensation shall begin on 
 
                 the fourth day of disability after the injury.
 
            
 
                    If the period of incapacity extends beyond the 
 
                 fourteenth day following the date of injury, then 
 
                 the compensation due during the third week shall 
 
                 be increased by adding thereto an amount equal to 
 
                 three days of compensation.
 
            
 
                 Iowa Code section 85.33 provides, in part:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's injury on May 6, 1989 arose out of and in 
 
            the course of his employment and that claimant's temporary 
 
            total disability of 4.429 weeks and his medical bills in the 
 
            amount of $804.55 was causally connected to his injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to four point four two nine 
 
            (4.429) weeks of temporary total disability benefits at the 
 
            rate of three hundred fifty-nine and 22/100 dollars 
 
            ($359.22) per week, beginning May 6, 1989.
 
            
 
                 That defendant shall pay the accrued weekly benefits in 
 
            a lump sum, and since no benefits have been paid there is no 
 
            credit against same.
 
            
 
                 That defendant shall pay interest on the benefits 
 
            awarded herein, as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay claimant's medical costs in 
 
            the amount of eight hundred four and 55/100 dollars 
 
            ($804.55).  These costs are itemized in claimant's Exhibit 
 
            A.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendant shall file a first report of injury.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 That defendant 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 John J Wolfe
 
            Attorney at Law
 
            402 6th Ave S
 
            Clinton IA 52732
 
            
 
            Midwest USA
 
            P O Box 404
 
            Savanna IL 61074
 
            CERTIFIED & REGULAR MAIL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51801; 51100; 51108
 
                                          Filed September 12, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY B. HOWARD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 910281
 
            vs.                           :
 
                                          :
 
            MIDWEST USA, INC.,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            51801
 
            Found claimant was temporary totally disabled for 4.429 
 
            weeks and entitled to some medical benefits.
 
            
 
            51100
 
            Found claimant's injury arose out of and in the course of 
 
            claimant's employment.
 
            
 
            51108
 
            Found claimant's temporary total disability was causally 
 
            connected to his work injury.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLENE J. JOHNSON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 910294
 
            HARKERS WHOLESALE MEAT,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Charlene J. Johnson, against her employer, 
 
            Harkers, Inc., and GAB Business Services, Inc., insurance 
 
            carrier, defendants, to recover benefits as the result of an 
 
            alleged injury occurring on April 3, 1989.  This matter came 
 
            on for hearing before the undersigned deputy industrial 
 
            commissioner at Sioux City, Iowa on November 30, 1990.  A 
 
            first report of injury was filed June 2, 1989.
 
            
 
                 The record consists of joint exhibits A through X; 
 
            claimant's exhibits 1 through 4; and, defendants' exhibit 
 
            AA; testimony from claimant; Philip Renders; Sheila 
 
            VanDriel; Judy Baatz; Derrick Hellinga; Paul DeRocher; and 
 
            Joel Hoogeveen.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order and the stipulations 
 
            of the parties at the hearing, the parties stipulated that 
 
            claimant's workers' compensation rate is $153.24.
 
            
 
                 The following issues are presented by the parties for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether claimant's disability is causally related 
 
            to her injury;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits;
 
            
 
                 4.  Whether claimant is entitled to permanent partial 
 
            or permanent total disability benefits;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant, Charlene Johnson, (according to medical 
 
            records) was born June 21, 1949.  She began working for 
 
            Harker's, Inc., on February 29, 1988.
 
            
 
                 She was initially hired to a production B position, and 
 
            continued with this job title until her separation from her 
 
            employment with Harker's on April 3, 1989.
 
            
 
                 During her employment with Harker's, claimant was 
 
            evaluated on five separate occasions: March 28, 1988; May 
 
            30, 1988; August 29, 1988; November 28, 1988; and, February 
 
            27, 1989.  (Joint Exhibits U, T, R, O, N)
 
            
 
                 The record reflects that claimant received excellent 
 
            work appraisals during these evaluations.
 
            
 
                 The controversy is this case seems to form around the 
 
            appraisal given to claimant on November 28, 1988.  
 
            Claimant's rendition of the meeting that took place during 
 
            the evaluation is quite different than defendant's 
 
            recitation of the meeting.
 
            
 
                 Claimant states one of her supervisors, Derrick 
 
            Hellinga, asked her to report employees who violated USDA 
 
            and Harker's sanitary rules or regulations.
 
            
 
                 The evidence does show that around the time of 
 
            claimant's November 1988 appraisal, Bud Baumgart, the plant 
 
            manager, had concern about employees violating these 
 
            sanitary rules.  A memo written by Baumgart to all employees 
 
            on November 17, 1988 states in part:
 
            
 
                    During the past several weeks, there has been a 
 
                 number of reports that employees are violating 
 
                 U.S.D.A. - Harker's sanitary rules and 
 
                 regulations....
 
            
 
                    U.S.D.A. is a government agency that monitors 
 
                 the manufacturing of food products, assuring 
 
                 nutrition and wholesomeness.  Even without 
 
                 U.S.D.A. or Harker's Supervision and Quality 
 
                 Control being around to monitor these rules, 
 
                 employees should on their own, through common 
 
                 sense and concern for others, follow all sanitary 
 
                 rules and regulations....
 
            
 
                    It is extremely important that all U.S.D.A. and 
 
                 Harker's rules and regulations are met.  Employees 
 
                 caught violating these rules and regulations will 
 
                 be disciplined.
 
            
 
                 During claimant's case-in-chief, she implicated several 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            supervisors who asked her to report workers who were 
 
            violating the rules and regulations, including Derrick 
 
            Hellinga; Paul DeRocher; and Joel Hoogeveen.  All of these 
 
            supervisors testified at the hearing, and denied that they 
 
            asked claimant to monitor or report on the other workers.
 
            
 
                 Claimant also contends that a conspiracy was formed 
 
            between other coworkers and her supervisors.  Claimant 
 
            suspicioned that the conspiracy was to divert the "problem 
 
            women" away from new workers to claimant.  Claimant was 
 
            unable to define what she meant by "problem women."  Again, 
 
            supervisors who testified for their company, denied any 
 
            knowledge of "problem women", and denied any such plan.
 
            
 
                 Claimant also argued that several workers in the plant 
 
            had conspired against her and blamed her for another 
 
            coworker's health problem.  Defendant denied any knowledge 
 
            of this.
 
            
 
                 Lastly, claimant indicated that a conspiracy existed in 
 
            order to facilitate adherence to the plant's work rules and 
 
            regulations.  Defendants' witness, Derrick Hellinga, did 
 
            state that he followed-up on her complaints about these 
 
            conspiracies, but found no foundation for her concerns.
 
            
 
                 Claimant stated she discontinued her "reporting and 
 
            monitoring" duties after one week.  Although she was not 
 
            certain as to the date she started, she remembered that she 
 
            began reporting workers on a Monday, after a holiday.  The 
 
            evidence shows the time-frame to be on President's Day, 
 
            February 20, 1989.
 
            
 
                 Claimant left work on April 3, 1989.  She began to see 
 
            Kenneth Miller, D.O., for help.  He kept her off of work, as 
 
            a result of tension and stress, for an indefinite time.  
 
            (Ex. A, Page 42).  On April 27, 1989, he wrote the following 
 
            letter:
 
            
 
                 To Whom It May Concern:
 
            
 
                 On April 3, 1989 I first examined and treated 
 
                 Sherry for stress and tension as result of a work 
 
                 related incident.
 
            
 
                 Sherry feels that she was "used" and deceived by 
 
                 the supervisor while trying to resolve a conflict 
 
                 with co-workers.  She also feels there is a 
 
                 conspiracy among supervisors, the plant manager, 
 
                 and co-workers to discredit her by discussing her 
 
                 past medical and social history.  These 
 
                 accusations have caused tension, anxiety, and 
 
                 stress and as result, she remains totally disabled 
 
                 or unable to work.
 
            
 
            (Joint Ex. A, p. 41)
 
            
 
                 Claimant stayed off work, under Dr. Miller's advice, 
 
            until August 3, 1989.  Although claimant states she did not 
 
            quit her job, defendants contend she called the plant and 
 
            quit.  (Defendants' Ex. AA).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Miller wrote a letter to defendant Harker's Inc., 
 
            on August 3, 1989, stating:
 
            
 
                    The following information is a summary compiled 
 
                 from my office records regarding Sherry Johnson.
 
            
 
                    I first treated Sherry on November 21, 1984, 
 
                 for a routine yearly check-up.  On June 6, 1986 
 
                 she was treated for muscular pain with osteopathic 
 
                 manipulative therapy, analgesic and 
 
                 anti-inflammatory medication.  Over the next 
 
                 several months she was treated on regularly 
 
                 scheduled office appointments for chronic 
 
                 myofaschitis of the cervical dorsal spine and 
 
                 anxiety.  She possibly has a borderline 
 
                 personality disorder, for she is unstable in 
 
                 several areas including behavior, mood and self 
 
                 image.  Her psychologic factor may have 
 
                 contributed directly or indirectly to her physical 
 
                 disorder.  Due to the psychological problems she 
 
                 was treated by a Psychologist.
 
            
 
                 On April 3, 1989, I again examined and treated 
 
                 this patient for stress, tension and anxiety.  At 
 
                 that time is was determined that the patient would 
 
                 probably benefit by having a leave of absence from 
 
                 work due to a stressful situation.  On April 17, 
 
                 1989, during this visit the patient discussed with 
 
                 me the problems she was having at work with 
 
                 co-workers and supervisors.  I have previously 
 
                 submitted this information to your office in the 
 
                 letter dated April 27, 1989.  Since then I have 
 
                 seen Sherry on regularly scheduled office visits.  
 
                 We have tried to reduce the tension and anxiety 
 
                 that she experiences with mild tranquilizers.  I 
 
                 have discussed with her on multiple occasions the 
 
                 problems and situations that she has experienced.  
 
                 She has considerable amount of anger and guilt due 
 
                 to the financial loss for not working.
 
            
 
                    In summary, over the past three years there 
 
                 have been multiple occasions when she experienced 
 
                 overwhelming mental and emotional stress, tension, 
 
                 anxiety, anger and frustration.  She has received 
 
                 medication for the treatment of these problems.  
 
                 Has responded favorably.  However, there have been 
 
                 long periods of time when she has been totally 
 
                 incapacitated by these symptoms.  At the present 
 
                 time she is unable to return to work as result of 
 
                 the anxiety, tension and frustration.  It has been 
 
                 extremely difficult for her to cope during this 
 
                 period of unemployment due to the financial burden 
 
                 that was placed on the family due to the loss of 
 
                 income.
 
            
 
                 Claimant has had a history of physical problems, 
 
            brought on by an automobile accident in which she was 
 
            involved in December 1983.  Medical records from 1973 
 
            through 1990 indicate she has also received treatment for 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            major depression, anxiety and stress at the latest in 1986.  
 
            (See, Jt. Ex. A, p. 43).
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Injury is not limited to a physical injury; it can also 
 
            be defined as a psychological injury.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she, received an injury on April 3, 
 
            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. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 "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 v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The first step in resolving this matter is determine 
 
            whether claimant sustained an injury which arose out of and 
 
            in the course of her employment.  The injury claimant 
 
            apparently relies upon is her emotional state.
 
            
 
                 The standard for determining whether a mental injury 
 
            arose out of and in the course of employment was discussed 
 
            in Ohnemus v. John Deere Davenport Works, (Appeal Decision, 
 
            February 26, 1990):
 
            
 
                    In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or a physical condition caused by mental 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                       We have recognized that in both civil and 
 
                    criminal actions causation in fact involves 
 
                    whether a particular event in fact caused 
 
                    certain consequences to occur.  Legal 
 
                    causation presents a question of whether the 
 
                    policy of the law will extend responsibility 
 
                    to those consequences which have in fact 
 
                    been produced by that event.  State v. 
 
                    Marti, 290 N.W.2d 570, 584-85 (Iowa 1980).  
 
                    Causation in fact presents an issue of fact 
 
                    while legal causation presents an issue of 
 
                    law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept of Human Services, (Appeal 
 
                 Decision, August 19, 1989) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 
            
 
                    Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 
                 240 N.W.2d 128, 130 (Wisc. 1976).
 
            
 
                 See also, Kostelac v. Feldman's Inc., (Appeal Decision, 
 
            June 13, 1990).
 
            
 
                 Claimant has the burden of proving that her mental 
 
            condition arose out of and in the course of her employment 
 
            with defendant, Harkers, Inc.  In the instant case, claimant 
 
            has failed to produce enough evidence to persuade the 
 
            undersigned that due to her working environment, she now has 
 
            mental problems.  Although claimant was credible, she did 
 
            not produce enough specific and reliable information to 
 
            support a finding in her favor.  It is concluded that 
 
            claimant has failed to establish by a preponderance of the 
 
            evidence that her injury arose out of and in the course of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            her employment, either factually or legally.  Claimant's own 
 
            physician stated that her emotional problems surfaced in 
 
            1986, which pre-dates her employment with defendants, and 
 
            the injury date.  And, it was not shown that her mental 
 
            condition resulted from an employment situation of greater 
 
            dimensions than the daily stress experienced by all 
 
            employees.
 
            
 
                 The greater weight of the evidence shows that, although 
 
            claimant was one of defendant's better employees, she began 
 
            to have emotional problems that caused her demise.  The root 
 
            or cause of these problems has not been shown to stem from 
 
            her employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing from the proceedings.
 
            
 
                 Defendants are assessed costs pursuant to Rule 343 IAC 
 
            4.33.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms Charlene J Johnson
 
            1321 Avenue H
 
            Hawarden Iowa 51023
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce St Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANTOS G. BUENO,              :
 
                                          :
 
                 Claimant,                :      File No. 910353
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            H.J. HEINZ,                   :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Santos 
 
            Bueno, as a result of injuries to his low back which 
 
            occurred on February 8, 1989.  Defendants accepted 
 
            compensability for the injury, paid weekly benefits and 
 
            medical expenses.
 
            
 
                 The case was heard and fully submitted in Davenport, 
 
            Iowa, on January 29, 1991.  The record in the proceeding 
 
            consists of joint exhibits A through O and testimony from 
 
            claimant, Maria Bueno and Kelly Kendall.
 
            
 
                                      issues
 
            
 
                 The sole issue for determination is the extent of 
 
            entitlement to weekly compensation for permanent partial 
 
            disability under Iowa Code section 85.34(2)(u).
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, the 
 
            following findings of fact are made:
 
            
 
                 Santos Bueno injured his low back when he lifted a 
 
            bucket weighing about 50 pounds at his employer's place of 
 
            business on February 8, 1989.  Claimant had previous 
 
            injuries to his low back in 1984 and 1987 that resulted in 
 
            medical treatment.
 
            
 
                 Claimant experienced a long period of convalescence 
 
            before returning to work for employer.  He treated with 
 
            numerous doctors during the period in question.  Initially, 
 
            he was seen by William Catalona, M.D.  He also received 
 
            treatment from Robert J. Chesser, M.D. and Byron W. Rovine, 
 
            M.D.  He also had an evaluation performed by the University 
 
            of Iowa Spine Diagnostic and Treatment Center.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's low back condition was diagnosed as an L5-S1 
 
            herniated disc.  All doctors eventually agreed with this 
 
            diagnosis (Joint Exhibit E, page 6; Jt. Ex. K, p. 6; Jt. Ex. 
 
            J, p. 17; and Jt. Ex. L, p. 16).
 
            
 
                 Claimant refused to undergo further testing that was 
 
            recommended by the University of Iowa and also refused to 
 
            undergo surgery in order to correct the L5-S1 disc 
 
            herniation (Jt. Ex. H, p. 44).  Claimant testified that he 
 
            was afraid of surgery and its consequences.
 
            
 
                 Permanent work restrictions were assigned as a result 
 
            of the February 8, 1989 injury and claimant returned to work 
 
            for employer.  The work restrictions are best described as 
 
            alternate sitting and standing every 15 minutes with no 
 
            lifting over 15 pounds (Jt. Ex. L, p. 16; Jt. Ex. C, p. 33).
 
            
 
                 Claimant's job at the time of the February 8, 1989 
 
            injury was a grade level 6.  Subsequent to returning to work 
 
            with the specified work restrictions, claimant has been 
 
            limited to performing grade level 1 and 2 work.  Exhibit O 
 
            reveals the pay rates for the different grades at employer's 
 
            place of business.  Claimant's grade level for February 8, 
 
            1989 is not shown on Exhibit O.  However, the ratio from 
 
            year to year appears to be similar.  As of March 1, 1989, a 
 
            grade 6 employee would earn $10.885 per hour, a grade 2 
 
            employee would earn $10.105 per hour, while a grade 1 
 
            employee would earn $9.91 per hour.
 
            
 
                 Claimant sustained a 78 cent to 97 cent per hour loss 
 
            of wages due to the work restrictions imposed.
 
            
 
                 A whole body impairment was also assigned by the 
 
            various doctors.  The examining doctors agreed that 
 
            claimant's back condition should be rated at 7-10 percent 
 
            permanent partial impairment to the body as a whole (Jt. Ex. 
 
            E, p. 3; Jt. Ex. L, p. 17; Jt. Ex. N, p. 5)
 
            
 
                 James Weinstein, M.D., has confronted with the issue of 
 
            apportionment of the impairment with respect to claimant's 
 
            prior back injuries of 1984 and 1987, as compared to the 
 
            February 8, 1989 injury (Jt. Ex. N, pp. 9 & 10).  Dr. 
 
            Weinstein opined with reasonable medical certainty that the 
 
            February 8, 1989 injury should be allocated one-third of the 
 
            total impairment rating with the remaining two-thirds 
 
            attributable to the prior back injuries.  Medical evidence 
 
            contradicting Dr. Weinstein's opinion on apportionment was 
 
            not offered.
 
            
 
                 It is found that claimant's permanent partial 
 
            impairment to the low back is 9 percent to the body as a 
 
            whole.
 
            
 
                 It is found that as a result of the February 8, 1989 
 
            injury, claimant sustained a 3 percent permanent partial 
 
            impairment to the body as a whole.
 
            
 
                 It is found that as a result of claimant's prior back 
 
            injuries which occurred in 1984 and 1987, he sustained a 6 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            percent permanent partial impairment to the body as a whole.  
 
            However, no showing was made the 1984 and 1987 injuries 
 
            restricted claimant from performing work for which he had 
 
            previous training and experience.
 
            
 
                 The sole issue presented for determination is the 
 
            extent of claimant's entitlement to industrial disability 
 
            resulting from the February 8, 1989 low back injury.
 
            
 
                 The industrial disability may be apportioned between 
 
            the preexisting low back condition and the 1989 injury if 
 
            work restrictions were imposed as a result of the prior 
 
            injuries.  Dr. Weinstein's apportionment of impairment, 
 
            however, does not equate to apportionment of industrial 
 
            disability in that no showing was made that the 1984 and 
 
            1987 injuries restricted claimant from performing his 
 
            previous duties, thereby resulting in an actual loss of 
 
            earning capacity.
 
            
 
                 Factors effecting industrial disability are claimant's 
 
            age, education experience, impairment and work restrictions.  
 
            Employer's offer of work post-injury is also a factor to be 
 
            considered.
 
            
 
                 Claimant was age 41 at the time of the injury in 
 
            question.  He has a third grade education with work 
 
            experience consisting primarily of heavy manual labor both 
 
            before and after his commencement of employment with 
 
            employer in December 1977.  Subsequent to the 1984 and 1987 
 
            back injuries, claimant was able to perform grade 6 heavy 
 
            labor work for employer.  Subsequent to February 8, 1989, 
 
            claimant has been limited to grade 1 or 2 light labor work.  
 
            No showing was made that claimant had specified work 
 
            restrictions which resulted form the 1984 and 1987 injuries.
 
            
 
                 It is found that claimant sustained 20 percent 
 
            industrial disability as a result of the February 8, 1989 
 
            injury to his low back.  The total industrial disability of 
 
            20 percent is attributable to the February 8, 1989 injury in 
 
            question.
 
            
 
                 The February 8, 1989 injury was assigned an industrial 
 
            disability primarily because that injury resulted in work 
 
            restrictions which prevented claimant from performing grade 
 
            6 work.  All other factors being equal, the 1989 injury 
 
            caused an actual loss in earnings and a much greater loss in 
 
            access to the unskilled labor market as compared to the 
 
            earlier alleged back injuries.
 
            
 
                 It should be noted that the employer acted in good 
 
            faith by returning claimant to its work force subsequent to 
 
            the injury.  If the employer had refused to accommodate 
 
            claimant's work restrictions the industrial disability would 
 
            have been significantly higher.  This employer is commended 
 
            for its accommodation of injured employees upon their return 
 
            to the work force.
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Apportionment of industrial disability is not 
 
            appropriate unless there is a showing that the prior injury 
 
            resulted in physical work restrictions that have a direct 
 
            effect upon the injured employee's earning capacity.  Bearce 
 
            v. FMC Corporation, Iowa Supreme Court, No. 458/89-1423, 
 
            filed January 23, 1991).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Upon considering all the material factors, it is found 
 
            that evidence in this case supports an award of 20 percent 
 
            permanent partial disability which entitles claimant to 
 
            recover 100 weeks of benefits under Iowa Code section 
 
            85.34(2)(u) as a result of the February 8, 1989 low back 
 
            injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant one hundred (100) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred ninety-two and 28/100 dollars ($292.28) commencing 
 
            November 1, 1989.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code 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 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr William J Bribriesco
 
            Attorney at Law
 
            2407 18th St  Ste 202
 
            Bettendorf IA 52722
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed March 11, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SANTOS G. BUENO,              :
 
                                          :
 
                 Claimant,                :      File No. 910353
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            H.J. HEINZ,                   :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, age 41 with a third grade education and work 
 
            experience consisting of heavy manual labor, received low 
 
            back injury that restricted his performing certain jobs for 
 
            employer.  Restrictions were 15 minutes standing and 15 
 
            pounds lifting.  Claimant refused surgery and employer 
 
            returned him to employment at light duty.  Claimant had 
 
            previous low back injuries.  Claimant awarded 20% industrial 
 
            for most recent low back injury.