Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY SCHWAB,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 918186
 
                                          :
 
            CLOW CORPORATION,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GAB BUSINESS SERVICES, INC.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Terry Schwab seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant employer Clow Valve Company and defendant 
 
            insurance company GAB Business Services.  He asserts an 
 
            injury involving multiple parts of the body attributable to 
 
            that employment as of April 22, 1989.
 
            
 
                 This cause came on for hearing in Ottumwa, Iowa, on 
 
            December 18, 1991.  The record consists of joint exhibits 1 
 
            through 4 and the testimony of claimant and Denise Spurgeon.  
 
            Official notice was taken of the first report of injury 
 
            filed in this matter on May 2, 1989.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            April 22, 1989, to the rate of compensation ($191.89 per 
 
            week), and that certain benefits were voluntarily paid prior 
 
            to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether there exists a causal relationship between 
 
            the injury and temporary and/or permanent disability;
 
            
 
                 2.  The extent of temporary disability and the nature 
 
            and extent of permanent disability, if any; and,
 
            
 
                 3.  Entitlement to medical benefits.
 
            
 
                 Defendants asserted an authorization defense to the 
 
            claim for medical benefits.  This defense was ruled invalid 
 
            at hearing because defendants have denied an injury arising 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            out of and in the course of employment and accordingly are 
 
            not entitled to direct the course of treatment.  Barnhart v. 
 
            MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981).  
 
            Although the parties stipulated that providers of medical 
 
            services would testify in the absence of contrary evidence 
 
            that fees were reasonable and necessary, causal connection 
 
            to the work injury is disputed as is whether those expenses 
 
            were incurred for reasonable and necessary treatment.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Terry Schwab, 36 years of age at hearing, left school 
 
            in the eleventh grade and has never completed requirements 
 
            for a General Equivalency Diploma.  He has taken courses in 
 
            auto mechanics and welding, obtaining certification in the 
 
            latter field.  Mr. Schwab has worked primarily as a 
 
            carpenter, welder, mechanic and in automobile salvage yards.
 
            
 
                 Mr. Schwab commenced employment with defendant Clow 
 
            Valve Company on April 15, 1989.  Much of claimant's work 
 
            consisted of finishing heavy valves with hand grinders 
 
            weighing up to perhaps 35 pounds (a two-handed model).  
 
            Claimant worked seven days during the period April 15 to 
 
            April 22, inclusive, including several 12-hour shifts.  On 
 
            or about April 22, claimant woke up with pain and swelling 
 
            in the arm.  Defendants referred him to Bradley R. Adams, 
 
            D.O.  Chart notes prepared by Kim Nikkel, R.N., dated April 
 
            24 show that claimant appeared complaining of right shoulder 
 
            and arm being swollen and numb for 2-3 days.  However, 
 
            observation showed no obvious deformity or swelling to the 
 
            right arm and range of motion was normal.  Grip in the right 
 
            hand was decreased.  Claimant was thereupon taken off work 
 
            after Nikkel spoke to Dr. Adams.
 
            
 
                 Claimant was eventually seen by Dr. Adams on April 28.  
 
            Chart notes show he was doing much better but continued to 
 
            have mild numbness involving the middle and ring finger of 
 
            the right hand.  Swelling had decreased significantly (this 
 
            notation is difficult to understand, since Nikkel had 
 
            observed no swelling at all only two days earlier).  
 
            Claimant had full range of motion of the shoulders, elbow, 
 
            wrist and hand.  Assessment was of right upper extremity 
 
            strain.
 
            
 
                 By May 2, Dr. Adams noted that claimant, although "a 
 
            little bit better," continued to have pain mostly in the 
 
            upper trapezius region with some radiation down the right 
 
            upper extremity.  Assessment then was of myofascial strain.  
 
            Chart notes of May 5, May 12 and May 22 continue to refer to 
 
            complaints of pain involving the right upper extremity and 
 
            right trapezius area.  On June 2, Dr. Adams diagnosed 
 
            myofascial strain of the right shoulder girdle and right 
 
            upper extremity which he causally related to work activity 
 
            based on a history of onset of symptoms after performing 
 
            work.  Dr. Adams referred claimant to Lawrence J. 
 
            Rettenmaier, M.D., a rheumatologist.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Adams' notes do not make any reference to pain in 
 
            the cervical or thoracic spine.  According to claimant, he 
 
            began developing back pain approximately seven to ten days 
 
            after symptoms appeared in the right arm and shoulder.  
 
            However, his recollection of time passage may be imperfect, 
 
            as shown by his testimony that he worked for Clow for 
 
            several weeks or a month before symptoms developed, clearly 
 
            an error.  Given that Dr. Adams did not chart complaints of 
 
            thoracic or cervical spine pain, it is probable that those 
 
            symptoms developed more than a week after upper extremity 
 
            symptoms.
 
            
 
                 Dr. Rettenmaier treated claimant from July 7, 1989, 
 
            through September 10, 1990.  By July 7, claimant had 
 
            developed headaches, photosensitivity and sleep disturbance. 
 
            Dr. Rettenmaier's initial impression was of 
 
            neuritis-developing into chronic pain syndrome, right 
 
            bicipital tendinitis and paracervical muscle strain.  
 
            Treatment in large part consisted of physical therapy and 
 
            recommended home exercises.  By August 18, claimant was 
 
            reported to show continued improvement with intermittent 
 
            rare episodes of severe pain in the paracervical muscles, 
 
            trapezius and a trigger point in the paraspinus muscles.  
 
            Impression was of myofascial pain syndrome, right upper 
 
            extremity.
 
            
 
                 By October 13, 1989, Dr. Rettenmaier noted no 
 
            significant change with respect to myofascial right upper 
 
            extremity pain since the last visit, although claimant was 
 
            markedly improved over his initial evaluation.  Again, 
 
            claimant had no evidence of a focal muscular or neurological 
 
            deficit on examination and the doctor emphasized the 
 
            importance of returning to work.
 
            
 
                 By September 10, 1990, there had been no significant 
 
            change in claimant's reported symptoms.  Upon his impression 
 
            of myofascial pain syndrome of the right upper extremity 
 
            which had evolved into a chronic pain syndrome, Dr. 
 
            Rettenmaier ordered additional testing performed at Mercy 
 
            Hospital Medical Center.  Charges of $1,154.00 remain unpaid 
 
            and in dispute.  He also suggested that claimant be 
 
            evaluated by a general surgeon experienced with thoracic 
 
            outlet syndrome.
 
            
 
                 All diagnostic testing has essentially proved negative.  
 
            A bone scan performed by Andrea H. McGuire, M.D., led to an 
 
            impression of scattered degenerative and periodontal changes 
 
            with no evidence for reflex sympathetic dystrophy.  
 
            Radiological examination by John Tauscher showed a normal 
 
            right shoulder as to bones, joints and soft tissues.  A 
 
            cervical spine study done by Dr. Tauscher was also negative.  
 
            A view of the dorsal spine read by Dr. Tauscher showed bone 
 
            mineralization within normal limits without fracture or 
 
            dislocation, but a "tiny" osteophyte consistent with mild 
 
            degenerative disease at the anterior end plate of a lower 
 
            thoracic disc space.  Dr. Tauscher also found probable mild 
 
            facet arthropathy at L5-S1, but the lumbosacral spine was 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            otherwise normal.  Nerve conduction studies performed by A. 
 
            Neptune, M.D., were normal.  Two other EMG studies of the 
 
            right upper extremity have also been interpreted as normal.
 
            
 
                 On September 18, 1990, Dr. Rettenmaier wrote that it 
 
            was probable that claimant's symptoms are related to work.  
 
            He noted that claimant had recently returned with rather 
 
            diffuse musculoskeletal complaints, dysesthesias and 
 
            continued sleep disturbance, and recommended that claimant 
 
            be off work secondary to pain.
 
            
 
                 On May 7, 1991, Dr. Rettenmaier wrote claimant's 
 
            attorney that claimant had appeared to have full range of 
 
            motion of all joints tested when last seen on September 10, 
 
            1990.  As symptoms were apparently not present until shortly 
 
            after beginning work with Clow, Dr. Rettenmaier believed 
 
            this would "imply that the job was directly related to his 
 
            symptoms."  As previously noted, most symptoms were of soft 
 
            tissue rheumatism.
 
            
 
                 On November 1, 1991, Dr. Rettenmaier wrote that 
 
            claimant had initially presented with complaints of pain 
 
            along the right shoulder girdle and upper extremity, but 
 
            that rather diffuse musculoskeletal complaints developed 
 
            over time.  The best diagnosis was of chronic pain syndrome, 
 
            which he defined as pain not of psychiatric origin which 
 
            persists greater than six months and defies repetitive 
 
            examinations as well as appropriate laboratory and 
 
            radiographic testing.  As claimant had full range of motion 
 
            of all joints, Dr. Rettenmaier assessed no permanent 
 
            functional impairment as per American Medical Association 
 
            guidelines.  He believed that claimant had reached maximum 
 
            medical recuperation in late 1989, perhaps in the area of 
 
            September or October, and would "definitely" encourage 
 
            claimant to get along with his life, perhaps considering 
 
            vocational rehabilitation for assistance in finding a 
 
            productive job.  He has not imposed permanent restrictions.
 
            
 
                 Claimant was seen for evaluation of possible thoracic 
 
            outlet syndrome on October 2, 1990, by C. David Smith, M.D.  
 
            At that time, his main complaints appeared to be in the neck 
 
            and lower back.  Physical examination revealed a slight 
 
            decrease in right grip strength without evidence of muscle 
 
            atrophy.  The neck had full range of motion.  Symptoms were 
 
            not seen as consistent with thoracic outlet syndrome.
 
            
 
                 Claimant was also treated by a chiropractor, Terryl L. 
 
            Wolfswinkel, D.C., beginning in November 1989.  Dr. 
 
            Wolfswinkel's diagnosis was of thoracic outlet syndrome, 
 
            cervical segmental dysfunction and cervicocranal syndrome.  
 
            On May 1, 1991, Dr. Wolfswinkel opined that claimant's 
 
            "condition" was initiated by work-related trauma.  He noted 
 
            that symptoms of headache, numbness and tingling in the 
 
            right arm and swelling of the first two digits of the right 
 
            hand appear to become aggravated by stress fatigue and 
 
            emotional upset.  Clinical findings included palpable 
 
            trigger points of the trapezius and rhomboid muscle group, 
 
            rotational fixations of the lower and upper cervical spine 
 

 
            
 
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            and malposition of the upper mid dorsal spine.  Dr. 
 
            Wolfswinkel also suggested physical restrictions, including 
 
            no work with hands above shoulder height, weight limits of 
 
            15 pounds from the floor, 25 from the counter, no looking up 
 
            longer than 2-3 minutes at a time, and against prolonged use 
 
            of the right hand in any activity.
 
            
 
                 It does not appear from Dr. Wolfswinkel's records that 
 
            he was aware claimant's neck and back symptoms came on over 
 
            time and remote from the initial upper extremity symptoms 
 
            noted April 22, 1989.
 
            
 
                 Claimant was also seen for evaluation by Daniel J. 
 
            McGuire, M.D., in October 1991.  Dr. McGuire made specific 
 
            note of claimant's failure to follow the aggressive home 
 
            exercise program that had earlier been recommended by Dr. 
 
            Rettenmaier and physical therapists and concluded that 
 
            subjective complaints of pain were not borne out by 
 
            objective findings.  Dr. McGuire, an orthopaedic surgeon, 
 
            assigned no permanent functional impairment and believed 
 
            that maximum medical improvement would have been within 6-12 
 
            months from the date of the incident.  Dr. McGuire 
 
            recommended no permanent medical restrictions.  He did, 
 
            however, offer a number of recommendations, including 
 
            cardiovascular conditioning, a regular exercise program, 
 
            cessation of smoking and acceptance of the fact that 
 
            hypertension was not secondary to the job incident.
 
            
 
                 Claimant now has numerous and diffuse complaints, all 
 
            of which he blames on the work injury under review.  These 
 
            include headaches, swelling of the right arm, hand, neck and 
 
            right shoulder, back pain, neck pain and hypertension.  By 
 
            the time of his deposition on September 4, 1991, he was able 
 
            to walk only six or seven blocks before having to sit down 
 
            because of pain from the mid-back up to the top of his head.  
 
            He also at that time complained of pain and numbness 
 
            appearing in the left hand.
 
            
 
                 The evidence is in some dispute as to why claimant has 
 
            not returned to work, light duty or otherwise.  Claimant was 
 
            not found to be a particularly credible witness.  Here, it 
 
            might be noted that he has in the past shown something of a 
 
            disregard for legal niceties.  For example, he has ignored a 
 
            court-ordered child support obligation for years and has 
 
            refused to file tax returns for the past five or six years 
 
            to prevent the government "taking what I have got now."  
 
            (Schwab deposition, page 37, line 6)  On the other hand, 
 
            safety coordinator Denise Spurgeon did not appear to be a 
 
            completely disinterested witness either.  She sought at all 
 
            times to cast claimant in the worst possible light, for 
 
            example, dividing a single incident into two, so as to 
 
            disparage claimant's motivation to return to work.  Claimant 
 
            appeared for work wearing shorts, then went for a physical 
 
            therapy appointment.  The appointment ended two hours before 
 
            he returned to work, too late for a transaction at the 
 
            personnel office.  This all occurred on one afternoon, but 
 
            Spurgeon implied that these were separate incidents.  She 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            also maintained that Dr. McGuire is the new "authorized" 
 
            doctor (although, as noted earlier, defendants are not in a 
 
            position to select medical care while denying liability), 
 
            but conceded that claimant has never been so advised.
 
            
 
                 It might here be noted that defendants refused to pay 
 
            the costs of testing recommended by Dr. Rettenmaier, who was 
 
            at that time the authorized physician.  The refusal came 
 
            after the testing, not before.  No warning was given.  The 
 
            testing appears reasonable and necessary, given claimant's 
 
            longstanding complaints.
 
            
 
                 It is the general impression of this observer that 
 
            defendants did not want claimant to return to work, but that 
 
            he also lacked motivation to do so.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of employment.  
 
            Causal connection to temporary or permanent disability 
 
            remains in dispute.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 22, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 As to healing period or temporary total disability, 
 
            note that Dr. Adams, Dr. Rettenmaier and Dr. Wolfswinkel 
 
            find a causal nexus.  There is no contrary expert opinion of 
 
            record.  Defendants' disputation of this point is without a 
 
            shred of supporting evidence.  Claimant has met his burden 
 
            of proof.
 
            
 
                 Because this decision does not find that claimant has 
 
            proved permanent disability, he must be compensated for 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            temporary total disability, rather than healing period.  
 
            Under Iowa Code sections 85.32 and 85.33, temporary total 
 
            disability in excess of four days is compensable from the 
 
            date of injury until the employee has returned to work or is 
 
            medically capable of returning to employment substantially 
 
            similar to that in which he was engaged at the time of 
 
            injury, whichever first occurs.
 
            
 
                 Dr. Rettenmaier believed that maximum improvement was 
 
            reached in September or October 1989.  He does not specify a 
 
            particular date.  Dr. McGuire suggests that maximum 
 
            improvement should have been reached between six and twelve 
 
            months from the date of injury.  These opinions are 
 
            consistent, at least as to the lower part of Dr. McGuire's 
 
            range.  Claimant has established entitlement to 26 weeks of 
 
            temporary total disability commencing April 22, 1989.  
 
            Defendants shall have credit for benefits voluntarily paid 
 
            and a dollar-for-dollar credit for any wages paid during 
 
            brief attempts at work during that time.
 
            
 
                 Claimant has not established entitlement to permanent 
 
            disability benefits.  Dr. Rettenmaier and Dr. McGuire assign 
 
            no permanent impairment and recommend no permanent physical 
 
            restrictions.  Many of claimant's symptoms developed well 
 
            after he ceased working for Clow.  While claimant's treating 
 
            chiropractor, Dr. Wolfswinkel, does recommend restrictions, 
 
            it appears that he is taking into account complaints 
 
            involving the spine, headaches and possibly the left hand.  
 
            None of these have been shown to be causally connected to 
 
            the work injury.  While Dr. Wolfswinkel does opine that such 
 
            a causal relationship exists, it does not appear that he had 
 
            an accurate history of the slow development of extraneous 
 
            symptoms.  The opinions of Drs. McGuire and Rettenmaier are 
 
            more persuasive.  Because claimant's initial injury extended 
 
            into the body as a whole (rhomboid and trapezius muscles), 
 
            it must be compensated industrially, if at all.  Industrial 
 
            disability measures the extent to which the work injury 
 
            reduces claimant's earning capacity.  Second Injury Fund v. 
 
            Hodgins, 461 N.W.2d 454 (Iowa 1990).  Absent any medical 
 
            restrictions, claimant has failed to prove any permanent 
 
            reduction to his earning capacity.
 
            
 
                 Defendants shall be ordered to pay testing expenses 
 
            authorized by treating physician Rettenmaier at Mercy 
 
            Hospital Medical Center.  These appear at exhibit 3, page 19 
 
            and total $1,154.00.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay to claimant twenty-six (26) weeks 
 
            of temporary total disability benefits at the stipulated 
 
            rate of one hundred ninety-one and 89/100 dollars ($191.89) 
 
            per week commencing April 22, 1989.
 
            
 
                 Defendants shall have credit for benefits voluntarily 
 
            paid and, on a dollar-for-dollar basis, for any wages earned 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            in employment with Clow Valve Company subsequent to April 
 
            22, 1989.
 
            
 
                 As all weekly benefits have accrued, they shall be paid 
 
            in a lump sum together with statutory interest pursuant to 
 
            Iowa Code section 85.30.
 
            
 
                 Defendants shall pay claimant's bill with Mercy 
 
            Hospital Medical Center totalling one thousand one hundred 
 
            fifty-four and 00/100 dollars ($1,154.00).
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40; 5-1402.60
 
                                               Filed February 19, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY SCHWAB,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 918186
 
                                          :
 
            CLOW CORPORATION,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GAB BUSINESS SERVICES, INC.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40; 5-1402.60
 
            Claimant failed to prove permanent disability.  Temporary 
 
            total disability and medical benefits were awarded.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES GERACE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 918232
 
            APACHE HOSE & BELTING CO.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INC.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Charles Gerace, against Apache Hose & Belting Co., 
 
            employer, and Crum & Forster Commercial Ins., insurance 
 
            carrier, both as defendants.  Mr. Gerace bases his claim 
 
            upon an injury which occurred on May 24, 1989.  The case was 
 
            heard and fully submitted at Cedar Rapids, Iowa, on August 
 
            4, 1992.  The record consists of testimony from the 
 
            claimant; claimant's exhibits 1 through 5; and, defendants' 
 
            exhibits A and B.
 
            
 
                                      ISSUE
 
            
 
                 The parties submit the following issue for resolution:
 
            
 
                 1.  The nature and extent of claimant's injury.
 
            
 
                                PROCEDURAL MATTERS
 
            
 
                 Several prehearing motions were made and taken under 
 
            advisement at the time of the hearing.
 
            
 
                 Claimant sustained a work injury on May 24, 1989, and 
 
            filed his petition on June 11, 1991, alleging a 30 percent 
 
            impairment to the left lower extremity.  Defendants' answer 
 
            denied this allegation for lack of information and knowledge 
 
            sufficient to form a belief to admit or deny.
 
            
 
                 Thereafter, claimant served requests for admissions and 
 
            interrogatories to defendants.  Germane to this proceeding 
 
            are the following requests for admissions propounded by 
 
            claimant on or about August 11, 1991, and answers supplied 
 
            by defendants on or about September 11, 1991:
 
            
 
                    REQUEST NO. 2:  The claimant suffered a 
 
                 permanent impairment to the left lower extremity 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 as a result of the subject injury.
 
            
 
                    RESPONSE:
 
            
 
                    Admit.
 
            
 
                    REQUEST NO. 3:  Claimant suffered a 30% 
 
                 permanent partial impairment of the left lower 
 
                 extremity as a result of the subject injury.
 
            
 
                    RESPONSE:
 
            
 
                    Admit.
 
            
 
                 The interrogatory propounded by claimant and the answer 
 
            by defendant relevant to this matter states the following 
 
            information:
 
            
 
                   INTERROGATORY NO. 18:  State the extent of 
 
                 permanent partial disability and rate that you 
 
                 acknowledge claimant is entitled to and state the 
 
                 factual basis for your position.
 
            
 
                    ANSWER:
 
            
 
                    Thirty percent of the leg based on the report 
 
                 of Dr. Roach dated 7/2/90.
 
            
 
                 On August 29, 1991, after the request for admissions 
 
            and interrogatories were served on defendants, but 
 
            apparently before defendants answered, claimant received a 
 
            report from Martin Roach, M.D., stating that claimant had 
 
            sustained a permanent impairment of 30 percent to the foot, 
 
            which converted to a 21 percent impairment to the lower 
 
            extremity.  This report was served on defendants after they 
 
            had answered the interrogatories.
 
            
 
                 As late as July 14, 1992, defendants were ready to 
 
            stipulate that claimant had sustained a 30 percent 
 
            impairment to the left leg, as shown on the draft of the 
 
            prehearing report provided by defendants, and attached to 
 
            claimant's resistance to the defendants' amendment to their 
 
            admissions.
 
            
 
                 At the hearing, defendants attempted to amend their 
 
            admissions as follows:
 
            
 
                    1.  Request 2:
 
            
 
                        Admit but consider left lower extremity is 
 
                 foot.
 
            
 
                    2.  Request 3:
 
            
 
                        Admit 30% permanent partial impairment of 
 
                 foot and 21 permanent partial impairment of lower 
 
                 extremity per note of Dr. Roach, August 29, 1991, 
 
                 attached.
 
            
 
                 Claimant vehemently objects to defendants' attempt to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            change the admission, and argues that if they are allowed to 
 
            do so, he has not been given the opportunity to present 
 
            evidence to address issues pertaining to the nature of 
 
            claimant's disability.
 
            
 
                 Defendants contend that to allow the amendment to the 
 
            admissions would not prejudice claimant's case.
 
            
 
                 The Iowa Rules of Civil Procedure have been adopted by 
 
            the industrial commissioner for use in proceedings before 
 
            the agency.  See, rule 343 IAC 4.35.  If the rules of civil 
 
            procedure are inconsistent with the rules of the division of 
 
            industrial services, the administrative rules will take 
 
            precedence.  See, rule 343 IAC 4.35.  Included therein are 
 
            rules 121 through 134 for discovery.  Iowa R.Civ.P. 128 
 
            governs the effect of admissions and provides the following 
 
            information:
 
            
 
                 Any matter admitted under R.C.P. 127 is 
 
                 conclusively established in the pending action 
 
                 unless the court on motion permits withdrawal or 
 
                 amendment of the admission.  Subject to the 
 
                 provisions of R.C.P. 138 governing amendments of a 
 
                 pretrial order, the court may permit withdrawal or 
 
                 amendment when the presentation of the merits of 
 
                 the action will be subserved thereby and the party 
 
                 who obtained the admission fails to satisfy the 
 
                 court that withdrawal or amendment will prejudice 
 
                 that party in maintaining that party's action or 
 
                 defense on the merits...
 
            
 
                 The Iowa Supreme Court has articulated a two prong test 
 
            to be used when deciding whether an admission can be 
 
            withdrawn.  Allied Gas v. Federated Mutual Insurance Co., 
 
            332 N.W.2d 877, 879 (Iowa 1983).  The first prong of the 
 
            test is to determine whether the amendment will aid in the 
 
            presentation of the merits of the action.  The second prong 
 
            of the test is to determine whether the party obtaining the 
 
            admission will be prejudiced in maintaining or defending the 
 
            action if the admission is amended or withdrawn.
 
            
 
                 In the case at bar, although the admissions address an 
 
            issue which arguably will determine the extent of 
 
            disability, claimant's actual request is a misstatement of 
 
            the information contained in Dr. Roach's initial and 
 
            subsequent reports.  To allow claimant to capitalize on an 
 
            artfully drafted, yet inaccurate presentation of the 
 
            evidence would appear not only to impede but also undermine 
 
            the judicial process.
 
            
 
                 Likewise, the second prong of the test, that claimant 
 
            would be prejudiced if the defendants were allowed the 
 
            amendment has also not been met.  Claimant knew that the 
 
            admission was incorrect as early as August of 1991, almost 
 
            one year before the hearing.  He chose not to seek other 
 
            opinions regarding his disability.  As a result, claimant 
 
            has been aware that the initial rating given by Dr. Roach 
 
            was to the foot, not the lower extremity.  Therefore, 
 
            claimant is not prejudiced by the amendment to the 
 
            admission.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 At the hearing, the undersigned allowed the admission 
 
            of a deposition of Martin Roach, M.D., taken for a third 
 
            party action.  The undersigned was not aware that the 
 
            deposition was taken on June 6, 1992.  According to the 
 
            hearing assignment order, claimant's case preparation for 
 
            the workers' compensation case was to have been completed by 
 
            June 4, 1992.  On that basis, the undersigned did not 
 
            consider claimant's exhibit 5, and excludes it from the 
 
            evidence.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 At the time of the hearing, Charles Gerace was 29 years 
 
            of age.  He is married and has three children.
 
            
 
                 Claimant served six years in the army and received an 
 
            honorable discharge due to a service disability due to an 
 
            unsuccessful bunionectomy to his left foot.
 
            
 
                 Claimant began working for the defendant Apache Hose & 
 
            Belting Company, in July of 1988.  He worked as a belt 
 
            fabricator, and while he was assisting a co-employee on a 
 
            specific task, a large roll of belting which weighed more 
 
            than 1800 pounds rolled over his left foot, ankle and his 
 
            left leg.  He was taken to the hospital by ambulance where 
 
            he was an inpatient for twelve days.  Claimant underwent 
 
            surgery to repair a medial malleolar fracture of the left 
 
            ankle (Claimant's Exhibit 1a, page 1; Claimant's Exhibit 1c, 
 
            pages 1-6).
 
            
 
                 Claimant continued under the care of Marvin Roach, M.D.  
 
            In September of 1989, claimant underwent a second surgery 
 
            designed to fuse a portion of a joint in his first toe (Cl. 
 
            Ex. 1a, pp. 2-6).
 
            
 
                 Claimant was referred to the Work Injury Rehabilitation 
 
            Center (WIRC) in Cedar Rapids, Iowa, for an evaluation of 
 
            his injury.  The notes indicate that claimant had sustained 
 
            a severe crush injury to the left lower leg and ankle, and 
 
            claimant complained of pain primarily in the ball of the 
 
            foot and about the ankle.  An examination revealed that 
 
            claimant had restricted range of motion in the ankle, and it 
 
            was advised that he begin a general conditioning program 
 
            emphasizing strengthening the ankle (Cl. Ex. 1b, pp. 1-2).
 
            
 
                 In February of 1990, claimant was released to return to 
 
            limited work, four hours a day with elevation of the foot 
 
            and no lifting.  Dr. Roach noted that claimant was making 
 
            slow progress, and his examination revealed decrease 
 
            sensation over the medial and plantar surface of the foot 
 
            (Cl. Ex. 1A, p. 7).
 
            
 
                 Claimant continued to see Dr. Roach in February, May 
 
            and June of 1990.  He complained of pain and Dr. Roach noted 
 
            subluxation of the lateral aspect of the foot particularly 
 
            with weight bearing.  On June 29, 1990, Dr. Roach stated 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that "[h]is disability rating is 30% as a result of the 
 
            injury of 5/24/89." (Cl. Ex. 1a, p. 8).
 
            
 
                 In August of 1990, claimant sought a second opinion 
 
            from the University of Iowa Hospitals and Clinics.  An 
 
            examination revealed a slightly swollen left ankle, with 
 
            limited range of motion.  He demonstrated some numbness in 
 
            the medial plantar nerve.  Evaluating physicians (Drs. 
 
            Newhouse and Marsh) did not recommend a arthrodesis for 
 
            pain, and declined to assess a disability impairment rating.  
 
            Apparently, they agreed with Dr. Roach's rating, as the 
 
            report states "it would be unlikely our assessment would 
 
            offer him a significantly larger disability impairment 
 
            rating than what he is currently receiving." (Cl. Ex. 1d, p. 
 
            1).
 
            
 
                 In June of 1991, claimant returned to Dr. Roach for an 
 
            examination.  Although additional surgery was discussed, it 
 
            was not recommended and claimant was given an insert for his 
 
            shoe to help the MP joint.  In August of 1991, claimant 
 
            returned to Dr. Roach with complaints of pain in the foot 
 
            and lower leg.  He was to be fitted for an ankle brace to 
 
            provide stability.  At this time, Dr. Roach clarified his 
 
            disability rating:
 
            
 
                 Discussed the patient's permanent impairment today 
 
                 with Mr. Rush his attorney.  In the 30% impairment 
 
                 rating was for his foot for the subtalar 
 
                 arthritis, plantar faciitis and scarring.  This 
 
                 would relate to the percent impairment of the 
 
                 lower extremity at 21% according to the Guides for 
 
                 Evaluation of the Permanent Impairment, AMA 
 
                 Edition.
 
            
 
            (Cl. Ex. 1a, p. 11)
 
            
 
                 In May of 1992, claimant sought treatment from St. 
 
            Luke's Hospital emergency room, complaining of a painful 
 
            lump on his left foot.  He was sent to Dr. Roach who ordered 
 
            blood tests.  Claimant requested a second opinion, and an 
 
            appointment with another physician in Dr. Roach's office, D. 
 
            Hart, M.D.  Eventually, it was determined that claimant was 
 
            suffering from a staph infection, and he was given a home IV 
 
            antibiotic which provided relief (Cl. Ex. 1a, pp. 13-14; Cl. 
 
            Ex. 1c, pp. 13-18).
 
            
 
                 Currently, claimant stated that he feels pain when he 
 
            walks, stands, or travels on uneven terrain.  He wears a 
 
            special shoe and also sports a leg brace which extends from 
 
            the bottom part of his foot to the bottom part of his knee.  
 
            Claimant walks with a noticeable limp.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained an injury to his foot or leg.  Both would be 
 
            considered scheduled member injuries, and claimant would be 
 
            compensated for the amount of disability sustained 
 
            multiplied by the number of weeks assessed to each member 
 
            under Iowa Code section 85.34(2).  Currently, the loss of or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            loss of use of a leg is compensated for 220 weeks; the loss 
 
            or loss of use of a foot is compensated for 150 weeks.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Although claimant argues that he is entitled to 30 
 
            percent impairment to the left lower extremity, the 
 
            undersigned finds otherwise.  It is clear that Dr. Roach's 
 
            impairment ratings were misconstrued by claimant.  The first 
 
            rating given by Dr. Roach simply states that claimant has a 
 
            30 percent disability.  He makes no mention of whether the 
 
            disability is to the leg or the foot.  Approximately one 
 
            year later, after discussing the matter with claimant's 
 
            attorney, he clarifies his rating and clearly states that he 
 
            assessed claimant as having a 30 percent impairment to the 
 
            foot, which converted to a 21 percent impairment to the leg.
 
            
 
                 The threshold issue then becomes whether the ankle is 
 
            part of the foot or part of the leg.  For purposes of the 
 
            case at bar, claimant's crush injury was to the medial 
 
            malleolar, which involves the lower end of the tibia or shin 
 
            bone.  Additionally, some of the surgery has required 
 
            placement of a screw in the bottom of the tibia to stabilize 
 
            the ankle.  Although claimant's subsequent problems have 
 
            focused on a joint in his first toe and his arch, he 
 
            continues to have some swelling of the ankle and discomfort 
 
            where the pin is located.  As a result, it is found that 
 
            claimant sustained an injury to his left leg.
 
            
 
                 Pursuant to Dr. Roach's impairment rating, the only 
 
            impairment rating given in this case, claimant has sustained 
 
            a 21 percent permanent partial disability to his left lower 
 
            extremity.  Therefore, he is entitled to 46.286 weeks of 
 
            permanent partial disability benefits.  According to 
 
            claimant's gross weekly earnings, $246 per week, his marital 
 
            status (married) and five exemptions, claimant's correct 
 
            workers' compensation rate is $176.02, according to the 
 
            Guide to Iowa Workers' Compensation Claim Handling (July 1, 
 
            1988).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant forty-six point two 
 
            eight six (46.286) weeks of permanent partial disability 
 
            benefits at the rate of one hundred seventy-six and 02/100 
 
            dollars ($176.02) per week beginning February 2, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay the costs of this action, 
 
            excluding the deposition of Martin Roach, pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert R Rush
 
            Attorney at Law
 
            526 2nd Ave SE
 
            P O Box 2457
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Cedar Rapids IA 52406
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1800; 5-2906
 
                                             Filed September 15, 1992
 
                                             Patricia J. Lantz
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES GERACE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 918232
 
            APACHE HOSE & BELTING CO.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INC.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800; 5-2906
 
            Claimant sustained a traumatic crush injury to the ankle.  
 
            The main point of contention (on the merits) was whether 
 
            claimant's injury was confined to the foot or lower 
 
            extremity.
 
            Claimant underwent two surgeries to the foot, ankle and 
 
            portions of the tibia.  The evidence supported a finding 
 
            that claimant's injury and subsequent disability was to the 
 
            left lower extremity.
 
            Procedurally, claimant tried to argue that artfully drafted 
 
            request for admissions which misrepresented a doctor's 
 
            report bound defendants to an admission that claimant had 
 
            sustained a 30% impairment to the leg/lower extremity.  The 
 
            decision focuses on the misrepresentation by claimant's 
 
            counsel, and allowed defendants to amend their answer to 
 
            certain admissions.  Claimant knew almost one year before 
 
            the hearing that the doctor assessed claimant's impairment 
 
            as 30% to the foot, or 21% to the left lower extremity.
 
            No prejudice was shown.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                                       51803 1107 2200 1108.20
 
                                       Filed March 13, 1992
 
                                       Jean M. Ingrassia
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         ELIZABETH MCLAUGHLIN,         :
 
                                       :      File Nos. 918331
 
              Claimant,                :                931329
 
                                       :                931328
 
         vs.                           :
 
                                       :      
 
         UNIVERSAL HOME HEALTH CARE,   :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         FIDELITY AND CASUALTY,        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         I.  RE: File number 918331:
 
         
 
         51803
 
         Claimant alleges a permanent right eye impairment as a result of 
 
         an incident on May 9, 1989, when a Pepsi Cola pop bottle exploded 
 
         in her face.  Credible evidence from an optometrist and three 
 
         ophthalmologists conclude that there is no objective evidence to 
 
         verify claimant's alleged loss of right-sided peripheral vision.  
 
         Expert opinion clearly demonstrates that her injury was trivial 
 
         and there is no objective ocular damage to correlate with her 
 
         subjective complaints of visual field loss.
 
         Thus, the greater weight of evidence supports temporary but no 
 
         permanent disability as a result of the May 9, 1989, injury.
 
         II.  Re:  File number 931328:
 
         
 
         1107
 
         Claimant alleges she sustained an injury to her right shoulder 
 
         and right hip as a result of an automobile accident on her way to 
 
         work.  Defendants deny liability based on the "coming and going" 
 
         rule.  
 
         Claimant worked as a home health aide and was required to bring 
 
         her car to work.  She had no fixed work situs, instead, she 
 
         provided services to various patients in their homes.  She 
 
         traveled from her home, using her personal car, to her patient's 
 
         home.
 
         The general rule is that, absent special circumstances, an 
 
         employee is not entitled to compensation for injuries occurring 
 
         off the employer's premise on the way to and from work.  Under a 
 
         separate rule which acts as an exception to the "going and 
 
         coming" rule, an employee's trip to and from work is considered 
 
         within the course of employment if the employee is required, as a 
 
         part of his employment, to provide a vehicle for use during the 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         working day.  Medical Associates Clinic, P.C. v. First National 
 
         Bank of Dubuque, 440 N.W.2d 374 (Iowa 1989).
 
         Since claimant was required to bring her car to work for its use 
 
         in furtherance of employer's practice, her automobile accident on 
 
         the way to work arose out of and in the course of employment.
 
         
 
         2200
 
         Claimant contends that the automobile accident on September 28, 
 
         1989, was caused by her visual impairment.
 
         The Iowa Supreme Court in Oldham v. Scofield and Welch, 222 Iowa 
 
         764, 767, 266 N.W. 480, 482 (Iowa 1936), held that "where an 
 
         accident occurs to an employee in the usual course of his 
 
         employment, the employer is liable for all consequences that 
 
         naturally and proximately flow from the accident."
 
         Since it was previously determined that claimant incurred no 
 
         permanent impairment as a result of her initial injury and 
 
         returned to her usual job activities on May 26, 1989, with no 
 
         restrictions or disability, the September 28, 1989, automobile 
 
         accident and minor ligamentous strain to the right shoulder and 
 
         right hip cannot be found to have naturally and proximately 
 
         resulted from the original injury.
 
         III.  Re:  File number 931329:
 
         
 
         1108.20
 
         Claimant alleges that she developed psychological problems as a 
 
         result of her initial physical trauma on May 9, 1989.  The proof 
 
         of the causal connection between an injury and an alleged 
 
         disability is dependent on medical opinion.  That medical opinion 
 
         cannot only be the opinion of a psychologist.  Saunders v. Cherry 
 
         Burrell Corp., II Iowa Ind'l Comm'r Rpt 333 (App. Dec. 1982); 
 
         Palmer v. Norwalk Community School District, II Iowa Ind'l 
 
         Comm'r Rpt 302 (App. Dec. 1981); Ohnemus v. John Deere Davenport 
 
         Works, file number 816947 (App. Dec. Feb. 26, 1990).
 
         Claimant relied on a clinical psychologist's opinion to establish 
 
         causation.  A psychologist is not a physician and lacks the 
 
         expertise to determine the relationship between the mind and the 
 
         body.  
 
         
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         AHMAD HATEM,                  :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  918564
 
         PIZZA HUT, INC,               :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         AMERICAN MOTORISTS INS.,      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
          
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Ahmad Hatem, 
 
         claimant, against Pizza Hut, Inc, employer, hereinafter referred 
 
         to as Pizza Hut, and American Motorists, insurance carrier, 
 
         defendants, for workers' compensation benefits as a result of an 
 
         alleged injury on May 18, 1989.  On June 1, 1993, a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a 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 May 18, 1989, claimant received an injury arising out 
 
         of and in the course of employment with Pizza Hut.
 
         
 
              2.  Claimant is not seeking additional temporary total or 
 
         healing period benefits in this proceeding.
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 

 
         
 
         Page   2
 
                 
 
                
 
                                     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:
 
         
 
              Claimant worked as a delivery person for Pizza Hut in 1989. 
 
         On or about May 18, 1989, claimant suffered a work injury while 
 
         driving an automobile.  The injury occurred when he was struck in 
 
         the rear by another vehicle.  Claimant was transported to the 
 
         hospital after the accident and received emergency care for 
 
         whiplash and aggravation of chronic low back pain.  Claimant 
 
         testified by deposition.  He stated that he experienced neck and 
 
         back pain with headaches and dizziness after the work injury. He 
 
         also stated that he developed swelling and pain in his left leg a 
 
         few weeks later.
 
                   
 
              Claimant had a prior neck and back injury in 1987 when he 
 
         fell at a bakery where he was working.  Claimant was hospitalized 
 
         at that time and received treatment though April 1989.  Claimant 
 
         has had chronic neck and back pain with headaches since this 1987 
 
         work injury.  Also, a few months after the injury while claimant 
 
         was living in California, he was treated for thrombophlebitis 
 
         resulting in swelling of his left leg.
 
         
 
              Claimant seeks permanent disability as a result of the 
 
         second work injury on May 18, 1989.  He states that he has 
 
         constant neck and low back pain with headaches and dizziness.  He 
 
         states that he has also had left leg swelling and pain between 
 
         the knee and heel since the 1989 injury.  
 
         
 
              It could not be found that the work injury of May 18, 1989, 
 
         was a cause of permanent impairment or disability.  Claimant has 
 
         had the same complaints of neck, back and headache pain since 
 
         1987.  No physician states that he suffered permanent effects 
 
         from the 1989 injury.  Most of claimant's physicians rendering an 
 
         opinion state that he only aggravated the prior existing chronic 
 
         pain problems and then returned to the same condition he was 
 
         before May 18, 1989.  The only physician to state that there may 
 
         be some after effects from the May 18, 1989 injury was Winthrop 
 
         Risk, M.D., who stated that after the 1989 injury, claimant 
 
         reported that he could not drive.  However, claimant was still in 
 
         his healing period at the time and claimant has the ability to 
 
         drive today.
 

 
         
 
         Page   3
 
         
 
              
 
              
 
              Claimant seeks reimbursement of the medical expenses listed 
 
         in the hearing report.  However, no testimony was given to 
 
         substantiate the causal connection of these expenses to the 
 
         injury.  No dates were included in the listing.  It is therefore 
 
         not possible to render a specific finding as to these listed 
 
         expenses.
 
         
 
              It is found that claimant recovered from the injury as of 
 
         December 4, 1989.  This was the time claimant's treating 
 
         neurosurgeon in California, Earl F. Jordan, M.D., finally opined 
 
         that claimant's condition was not changed by the May 18, 1989 
 
         injury.  All treatment for neck, back and headache pain between 
 
         May 18, 1989 and December 4, 1989, is found causally connected to 
 
         the May 18, 1989, except for treatment rendered to claimant's 
 
         left leg for thrombophlebitis.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I.   The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         permanent disability.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause permanent physical impairment or permanent limitation in 
 
         work activity.  
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact. Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
         such an opinion is for the finder of fact to determine from the 
 
         completeness of the premise given the expert or other surrounding 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).    
 
              
 
              In the case at bar, expert opinion had to be heavily relied 
 
         upon due to claimant's prior injury and prior chronic complaints 
 
         very similar to the complaints he had after the injury in this 
 
         case.  Expert opinion was lacking to support the contentions of 
 
         claimant and claimant failed to show casual connection to 
 
         permanency.
 
         
 
              II.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  A specific finding with reference to 
 
         the requested expenses was not possible without evidence to 
 
         backup the listing in the hearing report.  However, it was found 
 
         that expenses incurred after the injury through December 4, 1989, 
 
         were work related and they will be awarded .
 
         
 

 
         
 
         Page   4
 
                 
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant all medical expenses 
 
         incurred by claimant between May 18, 1989 and December 4, 1989, 
 
         for treatment of neck and back pain, headaches and dizziness.  
 
         Claimant shall be reimbursed for any of these expenses paid by 
 
         him.  Otherwise, defendants shall pay the provider directly along 
 
         with any lawful late payment penalties imposed upon the account 
 
         by the provider.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              
 
         
 
              Signed and filed this ____ day of October, 1993.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Kenneth F. Dolezal
 
         Attorney at Law
 
         4920 Johnson Ave N.W.
 
         Cedar Rapids, Iowa  52405
 
         
 
         Mr. Mark A. Woollums
 
         Attorney at Law
 
         111 E 3rd St STE 600 
 
         Davenport, Iowa  52801-1596
 
                   
 
         
 
 
            
 
            
 
            
 
            
 
                                            51803
 
                                            Filed October 26, 1993
 
                                            Larry P. Walshire
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            AHMAD HATEM,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No.  918564
 
            PIZZA HUT, INC,     
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MOTORISTS INS., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803 
 
            Nonprecedential, extent of disability case.
 
            
 
 
            
 
            Page   1 
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DALE L. KUNKEL,               :
 
                                          :        File No. 918568
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            GRIFFIN WHEEL,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dale L. 
 
            Kunkel, claimant, against Griffin Wheel Company, employer 
 
            (hereinafter referred to as Griffin), a self-insured defen
 
            dant, for workers' compensation benefits as a result of an 
 
            alleged injury on May 16, 1989.  On October 12, 1990, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On May 16, 1989, claimant received an injury which 
 
            arose out of and in the course of his employment with 
 
            Griffin.
 
            
 
                 2.  Claimant's entitlement to temporary total disabil
 
            ity or healing period benefits extends from May 17, 1989 
 
            through August 27, 1989.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin as of August 28, 1989.
 
            
 
                 5.  Claimant's rate of weekly compensation is $342.75.
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendant.
 
            
 
                                      issue
 
            
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant was employed by Griffin for 12 years prior to 
 
            the injury and continues to work for Griffin at the present 
 
            time.  Griffin manufactures steel railroad car wheels.  At 
 
            the time of the injury claimant was a Linberg Furnace opera
 
            tor and he continues in this job at the present time.  
 
            Claimant describes his job as one of the best jobs in the 
 
            plant.
 
            
 
                 On May 16, 1989, claimant injured his low back while 
 
            pulling a heavy wheel with a rope.  Claimant experienced a 
 
            sudden onset of back pain radiating into the right leg.  
 
            Claimant had no prior back problems and was in good health 
 
            prior to the injury.  Claimant was treated primarily by 
 
            Philip Wilson, M.D., a board certified specialist in public 
 
            health.  This deputy commissioner is unfamiliar with such a 
 
            medical specialty and it was never explained in the record.  
 
            Although initially Dr. Wilson felt claimant had many possi
 
            ble problems, his final diagnosis was degenerative disc dis
 
            ease, back strain and sciatica in the right leg.  This diag
 
            nosis was made following claimant's six day hospitalization.  
 
            Claimant was also treated in consultation with Dr. Holt, 
 
            speciality unknown.  Both Dr. Wilson and Dr. Holt did not 
 
            diagnose a herniated disc despite a MRI report showing evi
 
            dence of a small herniation at the L5-Sl level of claimant's 
 
            spine.  These doctors attribute claimant's pain to the 
 
            degenerative disc disease.  No explanation was given as to 
 
            the doctors' apparent disagreement with the radiologist 
 
            report.  Defendant points out in its brief that an x-ray 
 
            report showed no changes in claimant's spine since a prior 
 
            x-ray in 1986.  No reports were submitted with reference to 
 
            any such x-ray or why an x-ray was taken at that time.  
 
            Defendant argues that this x-ray report shows that the 
 
            injury could not have caused the degenerative disc disease 
 
            in claimant's pain.  However, one could also argue that this 
 
            report is clear evidence that claimant's problems are not 
 
            caused by the degenerative disc disease but the herniated 
 
            disc because the only thing new is the herniation.  In any 
 
            event, the treatment by Dr. Wilson consisted of medication, 
 
            exercises and physical therapy.  This treatment only par
 
            tially alleviated claimant's pain.  This pain reoccurred in 
 
            July 1989, at which time Dr. Holt was consulted.  Claimant 
 
            then underwent a couple of epidural steroid injections.  
 
            These injections appeared to greatly alleviate claimant's 
 
            pain according to Dr. Wilson.  Claimant testified that the 
 
            relief only lasted a few days and the pain returned.
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
            
 
                 It is found that the work injury of May 16, 1989, is a 
 
            cause of a mild permanent partial impairment to the body as 
 
            a whole.  This finding is made absent a specific rating by 
 
            any physician.  However, as a result of claimant's lack of 
 
            progress, Dr. Wilson imposed permanent activity restrictions 
 
            against the handling of very heavy objects weighing 75 
 
            pounds or greater.  In addition to the physical restriction, 
 
            this finding of impairment is based upon the credible testi
 
            mony of claimant and his family that almost all of 
 
            claimant's off work physical activities have been severely 
 
            curtailed as a result of the work injury.  With reference to 
 
            the issue of causation, defendant quotes in its brief from 
 
            Dr. Wilson's deposition relative to his initial working 
 
            diagnoses.  However, in later testimony in this deposition, 
 
            Dr. Wilson stated as follows on the issue of the causation 
 
            of claimant's condition:
 
            
 
                 A  I think the gentleman had pretty well, as I -- 
 
                 My discharge summary back when he was in the 
 
                 hospital, I think he had a degenerative 
 
                 lumbosacral disk disease with a back sprain and 
 
                 had sciatica in the right leg.
 
            
 
                 Q  Okay.  And given -- And I take it that is 
 
                 either caused by or secondarily caused by the type 
 
                 of history he gave of being injured.  Is that 
 
                 correct?
 
            
 
                 A  It could be compatible with it, yes.
 
            
 
                 Q  Okay. And you didn't find -- He didn't give you 
 
                 any other event to find that it would be 
 
                 compatible with it, did he?
 
            
 
                 A  No.
 
            
 
                 Therefore, given claimant's credible testimony as to 
 
            the nature of the injury and the symptoms arising therefrom, 
 
            such testimony by Dr. Wilson establishes by the greater 
 
            weight of the evidence the requisite causal connection 
 
            between the injury and claimant's back difficulties, 
 
            especially when claimant had no such problems before the 
 
            work injury.
 
            
 
                 It is further found that the work injury is a cause of 
 
            only a five percent loss of earning capacity.  Claimant is 
 
            permanently restricted from very heavy work.  However, he is 
 
            still able to perform lifting up to 75 pounds in the opinion 
 
            of his physicians and his pain appears to be mostly under 
 
            control.  Despite the restriction placed upon him by Dr. 
 
            Wilson, claimant is not compelled to leave his job as a 
 
            furnace operator but has only been restricted from pulling 
 
            any more heavy reels.  Apparently, Griffin  has made accom
 
            modations for this disability and has allowed claimant to 
 
            return to his old job.  According to Griffin Wheel manage
 
            ment, claimant is performing his job adequately at the 
 
            present time.  Claimant's job appears to be stable and 
 
            secure at least at the present time.  At this time, claimant 
 
            has not suffered a loss of income as a result of the work 
 

 
            
 
            Page   4 
 
            
 
            
 
            
 
            
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a preponder
 
            ance of the evidence that the work injury is a cause of the 
 
            claimed disability.  A disability may be either temporary or 
 
            permanent.  In the case of a claim for temporary disability, 
 
            the claimant must establish that the work injury was a cause 
 
            of absence from work and lost earnings during a period of 
 
            recovery from the injury.  Generally, a claim of permanent 
 
            disability invokes an initial determination of whether the 
 
            work injury was a cause of permanent physical impairment or 
 
            permanent limitation in work activity.  However, in some 
 
            instances, such as a job transfer caused by a work injury, 
 
            permanent disability benefits can be awarded without a show
 
            ing of a causal connection to a physical change of condi
 
            tion.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, 
 
            positive or unequivocal language and the expert opinion may 
 
            be accepted or rejected, in whole or in part, by the trier 
 
            of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding 
 
            circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, 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).
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause of a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 

 
            
 
            Page   5 
 
            
 
            
 
            
 
            
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  The extent to which a work injury and a resulting 
 
            medical condition has resulted in an industrial disability 
 
            is determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a five percent loss of earning capacity as a result of 
 
            the work injury.  Based upon such a factual finding, 
 
            claimant is entitled as a matter of law to 25 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is three percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred forty-two and 75/l00 dollars ($342.75) per 
 
            week from August 28, 1989.
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendant shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   6 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk  IA  52632
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed March 6, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DALE L. KUNKEL,               :
 
                                          :        File No. 918568
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            GRIFFIN WHEEL,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of permanent disability benefits.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAN KLEBS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 918569
 
            JOHNSRUD TRANSPORT, INC.,       
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            GREAT WEST CASUALTY,       
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 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 October 13, 1993 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Second Injury Fund shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas P. Lenihan
 
            Attorney at Law
 
            5835 Grand Ave. #104
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
         
 
 
 
 
 
 
 
                                            5-1803; 3000
 
                                            Filed February 28, 1994
 
                                            Byron K. Orton
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JAN KLEBS,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                   File No. 918569
 
         JOHNSRUD TRANSPORT, INC.,       
 
                                                     A P P E A L
 
              Employer,   
 
                                                   D E C I S I O N
 
         and         
 
                     
 
         GREAT WEST CASUALTY,       
 
                     
 
              Insurance Carrier,    
 
                    
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     :
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1803
 
         A 49-year-old truck driver who suffered a first injury to his 
 
         right knee in April 1986 and a second injury to his right arm in 
 
         May 1989 found entitled to 50 percent industrial disability based 
 
         upon an inability to return to his past work as a truck driver 
 
         and a 50 percent loss of earnings.  
 
         
 
         3000
 
         Claimant, who worked for employer two weeks before becoming 
 
         injured, was determined by employer and insurance carrier to have 
 
         the potential of earning $712.16 per week based upon the gross 
 
         weekly earnings of a similarly situated employee.  In a 
 
         settlement agreement between claimant and employer, this rate was 
 
         reaffirmed and stipulated as the correct rate by claimant, 
 
         employer and insurance carrier and approved by the industrial 
 
         commissioner. 
 
         At the hearing, Second Injury Fund challenged, but produced no 
 
         evidence to the contrary, the stipulated rate.  It was 
 
         determined, in the absence of evidence to the contrary, that the 
 
         rate stipulated to by the parties and approved by the 
 
         commissioner, was the appropriate rate in this case.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JAN KLEBS,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 918569
 
            JOHNSRUD TRASNPORT, INC.,     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jan H. 
 
            Klebs, claimant, against the Second Injury Fund of Iowa 
 
            concerning an alleged first injury to the right knee on 
 
            April 18, 1986 and an alleged second injury to the right arm 
 
            on May 17, 1989.  A settlement agreement was entered into 
 
            between claimant and employer on September 23, 1992.  
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on October 7, 1993, in Des 
 
            Moines, Iowa.  The claimant was present and testified.  
 
            Documentary evidence identified in the record consists of 
 
            claimant's exhibits 1 through 14 and defendant's exhibits 1, 
 
            2, 4, 8, 9, 12, 15, 17, 21, and 22.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated October 7, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant is entitled to Second Injury Fund 
 
            benefits; and
 
            
 
                 2.  The appropriate rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 

 
            
 
            Page   2
 
            
 
                
 
                
 
                 Claimant was born on March 9, 1944, and graduated from 
 
            high school in 1964.  His work experience has been as a mail 
 
            room clerk, meat packer, assembly line worker, truck driver 
 
            and security guard.  
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that on April 18, 1986, while delivering a load in 
 
            Tulsa, Oklahoma, claimant was driving his 18-wheel rig 
 
            coming out of a parking lot onto a road which was under 
 
            construction and the wheels slipped off of the edge of the 
 
            road onto the soft shoulder and onto its side.  While 
 
            attempting to get off of the truck, claimant slipped and 
 
            fell and sustained injuries to his right wrist, right knee, 
 
            head and neck.  On July 16, 1986, claimant underwent an 
 
            arthroscopy and arthroscopic partial right lateral 
 
            meniscectomy by Marshall Flapan, M.D.
 
            
 
                 Dr. Flapan examined claimant on September 22, 1987, at 
 
            which time he determined that claimant had reached maximum 
 
            medical improvement and as a result of his knee injury and 
 
            subsequent surgery he had sustained a 5 percent permanent 
 
            partial impairment of his right lower extremity.  Claimant 
 
            was released to perform his previous occupation as a truck 
 
            driver (claimant's exhibit 2).  
 
            
 
                 Claimant was referred by Liberty Mutual, the insurance 
 
            carrier for Ace Lines, Inc., to Resource Opportunities, 
 
            Inc., for a vocational rehabilitation assessment on October 
 
            29, 1987.  Claimant related to Jeff L. Johnson, 
 
            rehabilitation consultant, that his injuries precluded him 
 
            from performing his work as a truck driver.  As a result of 
 
            Mr. Johnson's efforts, claimant secured a job with N.P.I. 
 
            Security and Smart Industries as a security guard.  Claimant 
 
            testified that he worked for N.P.I. from June through 
 
            September 1988 and earned $4.50 per hour (cl. ex. 6).  
 
            
 
                 In August 1988 claimant entered into a settlement 
 
            agreement with Ace Lines, Inc.  He then quit his job at 
 
            N.P.I. and moved to Las Vegas, Nevada, in an attempt to find 
 
            other work.  He lived in Las Vegas for about three months 
 
            and returned to Des Moines, Iowa.  He then went to work for 
 
            A.D.M. driving a tractor.  He worked there about one month 
 
            and he was discharged.  On April 21, 1989, he made 
 
            application with Johnsrud Transport, Inc., for work as a 
 
            truck driver (defendant's ex. 9).
 
            
 
                 On April 21, 1989, Robert C. Jones, M.D., claimant's 
 
            former attending physician, released him to return to 
 
            regular work duties with no restrictions (def. ex. 4).  
 
            
 
                 On April 24, 1989, claimant underwent a pre-employment 
 
            physical examination which was reviewed by Kevin F. Smith, 
 
            M.D.  The examination was essentially unremarkable (cl. ex. 
 
            8).
 
            
 
                 Claimant testified that he was hired by Johnsrud as a 
 
            tanker trucker.  He stated he was employed to drive 
 
            interstate tanker trucks from Des Moines, Iowa, and/or 
 
            assigned pick-up locations to the west coast of the United 
 

 
            
 
            Page   3
 
            
 
            
 
            States.  On May 17, 1989, while pulling on a frozen PTO 
 
            shaft, he noted some pain, grating and swelling in his right 
 
            shoulder.  He saw Dr. Smith on May 18, 1989, and was given 
 
            medication and ice to administer to the sore area.  
 
            
 
                 The record indicates that on May 24, 1989, claimant was 
 
            examined by Peter D. Wirtz, M.D.  The examination revealed 
 
            ruptured biceps and tenderness over the rotator cuff.  He 
 
            was started on conservative nonsurgical management.  
 
            However, with continued symptoms and loss of function, a 
 
            diagnostic MRI was performed which showed soft tissue 
 
            inflammation of the area of the rotator cuff as well as 
 
            bicipital tendon rupture.  He was continued on conservative 
 
            therapy until January 23, 1990, at which time he underwent 
 
            decompression to the right shoulder to relieve any 
 
            inflammation on the rotator cuff tendon area.  Dr. Wirtz 
 
            last saw claimant on June 14, 1990, at which time he had a 
 
            functional loss of motion.  He was advised that he could 
 
            return to work on July 12, 1990, with limitations of 
 
            repetitive over-shoulder-height activity and lifting, 
 
            pushing and pulling no greater than 10 pounds.  He was given 
 
            a 13 percent impairment rating to the right upper extremity 
 
            (cl. ex. 9).
 
            
 
                 Claimant presented to Dr. Flapan on July 23, 1992.  At 
 
            this time, Dr. Flapan affirmed Dr. Wirtz's 13 percent 
 
            impairment rating of the shoulder and assessed an additional 
 
            4 percent to the right upper extremity secondary to the 
 
            biceps rupture (cl. ex. 10). 
 
            
 
                 On September 23, 1992, claimant entered into a 
 
            settlement agreement with employer for 52.5 weeks of 
 
            workers' compensation benefits or 21 percent permanent 
 
            partial disability to the arm (ex. 7).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The issue to be determined is whether claimant is 
 
            entitled to Second Injury Fund Benefits.  
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 

 
            
 
            Page   4
 
            
 
              
 
            
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 The record clearly establishes that claimant sustained 
 
            a first injury on April 18, 1986, to his right knee and was 
 
            given a 5 percent permanent impairment rating by Dr. Flapan, 
 
            his treating physician.  Claimant sustained a second injury 
 
            on May 17, 1989, to his right arm.  In a settlement 
 
            agreement, claimant received 52.5 weeks (250 x 21 percent) 
 
            of permanent partial disability benefits.  Clearly, claimant 
 
            has sustained permanent disability to the specified member 
 
            set out in section 85.64 and Second Injury Fund benefits are 
 
            therefore triggered.  An assessment of industrial disability 
 
            is therefore appropriate in this case.  
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. 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 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  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 
 

 
            
 
            Page   5
 
              
 
            
 
            
 
            each of the factors are to be considered.  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 as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 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.
 
            
 
                 Claimant is 49 years old.  He is a high school 
 
            graduate.  He attended truck driving school and obtained a 
 
            certificate after completing the program.  Claimant's injury 
 
            precludes him from performing his usual job as a truck 
 
            driver.  Claimant has worked as a security guard for the Des 
 
            Moines Art Center since June 1988.  He works 35.5 hours per 
 
            week and currently earns $5.58 per hour.  Claimant testified 
 
            that the work is easy and accommodates his physical 
 
            limitations.  Employer offered claimant light duty work 
 
            which claimant rejected and he quit Johnsrud on May 26, 
 
            1989, because he did not like office work (def. ex. 8).
 
            
 
                 Claimant testified that he currently earns about $200 
 
            per week.  Claimant worked 12 1/2 years for Bookey Packing 
 
            Company and earned $300 per week (def. ex. 1).  As a truck 
 
            driver for Ace Lines he earned $391.03 per week (cl. ex. 1).  
 
            Claimant was to be compensated by Johnsrud Transport at the 
 
            rate of $0.18 per mile, which rate was to be increased to 
 
            $0.20 per mile with longevity.  Unfortunately, claimant only 
 
            worked two weeks for Johnsrud before he was injured on May 
 
            17, 1989.  In the two weeks prior to his injury, claimant 
 
            earned $142.90 the first week and $238.16 the second week.  
 
            His average gross weekly earnings were $190.53 (ex. 11, page 
 
            2).  
 
            
 
                 In reaching a settlement agreement with employer, 
 
            employer calculated claimant's workers' compensation rate 
 
            based upon the gross weekly earnings of a similarly situated 
 
            employee at $712.16 per week (cl. ex. 11, p. 1).  This rate 
 
            was calculated eight months after claimant's injury date and 
 
            was provided to the insurance carrier on or about January 3, 
 
            1990.  This rate was reaffirmed and stipulated as the 
 
            correct rate by the claimant, employer and insurance carrier 
 
            at the time of the settlement, September 1992 (cl. ex. 7).
 
            
 
                 Claimant's May 17, 1989 work injury has resulted in a 
 
            significant loss of earnings and earning capacity.  
 
            Obviously, employer felt that claimant would have been 
 
            capable of earning at least $700 per week as an interstate 
 
            tanker trucker.  However, it is speculative as to whether 
 

 
            
 
            Page   6
 
              
 
            
 
            
 
            claimant would have reached this wage level since he only 
 
            worked for employer two weeks before becoming injured.  
 
            During the course of claimant's work history, his earnings 
 
            averaged about $400 per week.  This is a more accurate 
 
            assessment of claimant's earning capacity.
 
            
 
                 After carefully considering all of the factors of 
 
            industrial disability, including those previously 
 
            specifically discussed, the undersigned concludes that 
 
            claimant has sustained 50 percent industrial disability.  
 
            This is equivalent to 250 weeks.  The Second Injury Fund's 
 
            liability is reduced by the combined losses of claimant's 
 
            right knee (5 percent of 220 weeks or 11 weeks) and 
 
            claimant's right arm (21 percent of 250 weeks or 52.5 
 
            weeks).  Iowa Code section 85.34(2)(m) and (o).  The total 
 
            reduction is 63.5 weeks.  The Second Injury Fund's liability 
 
            is 186.5 weeks of permanent partial disability benefits.  
 
            
 
                 The next issue to be decided is the appropriate rate of 
 
            compensation.  
 
            
 
                 Section 85.36 of the Iowa workers' compensation law 
 
            provides in relevant part as follows:
 
            
 
                 The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by 13 the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                    7.  In the case of an employee who has been in 
 
                 the employ of the employer less than thirteen 
 
                 calendar weeks preceding the injury, the 
 
                 employee's weekly earnings shall be computed under 
 
                 subsection 6 taking the earnings, not including 
 
                 overtime or premium pay, for such purpose to be 
 
                 the amount the employee would have earned had 
 
                 the employee been so employed by the employer the 
 
                 full thirteen calendar weeks immediately preceding 
 
                 the injury and had worked, when work was available 
 
                 to other employees in a similar occupation. 
 
                 (Emphasis added.)
 
            
 
                    The application of Section 85.36(7) is 
 
                 mandated.  Section 4.1(30), Code of Iowa, 1993, 
 

 
            
 
            Page   7
 
               
 
            
 
            
 
                 provides in part as follows:
 
            
 
                    30.  Shall, must and may.  Unless otherwise 
 
                 specifically provided by the general assembly, 
 
                 whenever the following words are used in a statute 
 
                 enacted after July 1, 1971, their meaning and 
 
                 application shall be:
 
            
 
                             (a)  The word "shall" imposes a duty.
 
            
 
                 (Emphasis in original)
 
            
 
                 Section 85.36(7) is the appropriate method to determine 
 
            claimant's earnings in this case.  This section specifically 
 
            states that the weekly earnings shall be computed as under 
 
            section 85.36(6), but the earnings to be divided by 13 shall 
 
            be the amount the employee would have earned had the 
 
            employee been so employed by the employer the full 13 
 
            calendar weeks immediately preceding the injury and had 
 
            worked when work was available to other employees in a 
 
            similar occupation.
 
            
 
                 The record in this case discloses what claimant's 
 
            earnings would have been had he been employed the full 13 
 
            weeks preceding his injury and what an employee in a similar 
 
            occupation earned from the employer during this period (cl. 
 
            ex. 11).  The employer calculated claimant's compensation 
 
            rate based upon the gross weekly earnings of a similarly 
 
            situated employee, Mr. Vine, at $712.16.  This rate was 
 
            calculated eight months after Mr. Klebs' injury date, and 
 
            was provided to the insurance carrier on or about January 3, 
 
            1990.  This rate was reaffirmed and stipulated as the 
 
            correct rate by the claimant, employer and insurance carrier 
 
            at the time of the settlement agreement in September 1992 
 
            (cl. ex. 7).  
 
            
 
                 Defendant Second Injury Fund urges that claimant's 
 
            compensation rate be determined by averaging his gross 
 
            weekly earnings for the two weeks prior to his injury and 
 
            dividing by two.  However, this method is used only when a 
 
            determination cannot be made as to what claimant's earnings 
 
            would have been had he been employed by employer for the 
 
            full 13 calendar weeks immediately preceding the injury.  
 
            Hardy v. Abell-Howe Comp., file number 814126 (App. Dec. 
 
            December 21, 1990).
 
            
 
                 Defendant Second Injury Fund argues that they are not 
 
            bound by the settlement and computation agreement between 
 
            claimant and employer because they were not a party to such 
 
            agreement.  Northrup v. Tama Meat Packing, file number 
 
            724196 (App. Dec. March 19, 1990).  
 
            
 
                 Any settlement must be approved by the industrial 
 
            commissioner to be enforceable.  Iowa Code sections 86.27, 
 
            86.13, 85.35, and 85.47.  Like any settlement, an agreed-on 
 
            commutation also requires the approval of the industrial 
 
            commissioner.  Although the terms of the agreement are not 
 
            binding on the Second Injury Fund, when challenging the 
 
            terms thereof, the burden of proof is on the party who would 
 
            suffer loss if an issue were not established.  In this 
 

 
            
 
            Page   8
 
            
 
               
 
            
 
            instance, the Second Injury Fund contests the rate of 
 
            compensation agreed to by the parties and approved by the 
 
            commissioner and urges a significantly lower rate.  The 
 
            burden shifts to the Second Injury Fund to prove by a 
 
            preponderance of the evidence that their rate calculation is 
 
            more appropriate.  Iowa Rule of Appellate Procedure 14(f).  
 
            
 
                 Other than attacking the rate submitted by claimant, 
 
            the Second Injury Fund presented no evidence to the 
 
            contrary.  They produced no witnesses supporting their 
 
            contentions.  Thus, based upon the uncontroverted, 
 
            uncontradicted, unrebutted, and unrefuted evidence it is 
 
            determined that based on a gross weekly wage of $712, 
 
            claimant's rate of compensation is $425.94 per week.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That the Second Injury Fund pay to claimant one hundred 
 
            eighty-six point five (186.5) weeks of permanent partial 
 
            disability benefits at the rate of four hundred twenty-five 
 
            and 94/100 dollars ($425.94) per week.  The Second Injury 
 
            Fund's liability begins at the end of the employer's 
 
            liability for weekly benefits.  Finneman v. Wilson Foods 
 
            Corp., file numbers 834479/913590 (App. Dec. March 17, 
 
            1993).
 
            
 
                 That the Second Injury Fund pay accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That the Second Injury Fund pay interest on unpaid 
 
            weekly benefits beginning on the date of this decision.  
 
            Braden 459 N.W.2d 467, 473.
 
            
 
                 That the Second Injury Fund pay costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 That the Second Injury Fund file claim activity reports 
 
            as required by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1993.
 
            
 
                                       
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas P. Lenihan
 
            Attorney at Law
 
            5835 Grand Ave #104
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            PO Box 9130
 
            Des Moines, IA 50306
 

 
 
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                            51803 3000
 
                                            Filed October 13, 1993
 
                                            Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAN KLEBS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 918569
 
            JOHNSRUD TRASNPORT, INC.,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY,     
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            A 49-year-old truck driver who suffered a first injury to 
 
            his right knee in April 1986 and a second injury to his 
 
            right arm in May 1989 found entitled to 50 percent 
 
            industrial disability based upon an inability to return to 
 
            his past work as a truck driver and a 50 percent loss of 
 
            earnings.  
 
            
 
            3000
 
            Claimant, who worked for employer two weeks before becoming 
 
            injured, was determined by employer and insurance carrier to 
 
            have the potential of earning $712.16 per week based upon 
 
            the gross weekly earnings of a similarly situated employee.  
 
            In a settlement agreement between claimant and employer, 
 
            this rate was reaffirmed and stipulated as the correct rate 
 
            by claimant, employer and insurance carrier and approved by 
 
            the industrial commissioner. 
 
            At the hearing, Second Injury Fund challenged, but produced 
 
            no evidence to the contrary, the stipulated rate.  It was 
 
            determined, in the absence of evidence to the contrary, that 
 
            the rate stipulated to by the parties and approved by the 
 
            commissioner, was the appropriate rate in this case.
 
            
 
 
            
 
           
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TERRELL MORRISON,             :
 
                                          :     File Nos. 918693
 
                 Claimant,                :               974076
 
                                          :
 
            vs.                           :
 
                                          :   A R B I T R A T I O N
 
            EATON CORPORATION,            :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 8, 1993, at Des 
 
            Moines, Iowa.  These are proceedings in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of alleged injuries occurring on March 
 
            8, 1989 and March 3, 1989.  The record in the proceedings 
 
            consist of the testimony of the claimant, Dennis Gates, and 
 
            joint exhibits 1 through 9.
 
            
 
                                      ISSUES
 
            
 
                 The issues regarding both cases are:
 
            
 
                 1.  Whether the injuries arose out of and in the course 
 
            of claimant's employment on March 3, 1989 and March 8, 1989; 
 
            and,
 
            
 
                 2.  The extent of claimant's permanent disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence finds that:
 
            
 
                 Claimant is 31 years old.  Claimant testified in person 
 
            at the hearing and through his deposition taken on November 
 
            21, 1991, represented by joint exhibit 1.  Claimant 
 
            testified that just prior to graduating from high school in 
 
            May of 1980, he joined the national guard and went to basic 
 
            training after graduation for three months.  Upon his 
 
            return, he looked for and did miscellaneous jobs such as 
 
            farm work, helping with the harvest, hauling wagons and 
 
            loading bins.  He also worked with livestock, feeding them, 
 
            etc.
 
            
 
                 Claimant began working for defendant employer in 
 
            January 1981.  Claimant related the various jobs he had with 
 
            defendant employer up to the time he began having back 
 
            problems which involved the suja chucker.  It is also 
 
            referred to as a lathe job which he was working as of 
 
            December 7, 1988.  He described the nature of that job which 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant said involved bending over a box, getting cylinders 
 
            weighing approximately seven pounds out of the box and 
 
            stacking them onto a table, etc.  Claimant said he had 
 
            worked at this job for approximately three months when he 
 
            started noticing back problems.
 
            
 
                 Claimant later indicated that the size of the gears on 
 
            this particular job would weigh from 5 to 10 pounds and that 
 
            he would lift one with each hand so that the maximum he 
 
            would be lifting at one time would be a total of 20 pounds, 
 
            10 pounds in each hand (Joint Exhibit 1, pp. 16-17).  
 
            Claimant estimated he was working on this lathe job (turret 
 
            lathe) approximately two years up to December 1988.  
 
            Claimant further described the drill press job that he had 
 
            prior to working on this lathe job.
 
            
 
                 Claimant went over his post-high school education.  He 
 
            went to college in 1982 at the Iowa Western Community 
 
            College in Clarinda and took basically business courses and 
 
            accounting courses.  He then dropped out after the spring of 
 
            1983 but then went back to school in 1985 and graduated in 
 
            1987 with an associate degree.  Claimant then testified he 
 
            went back to school at Buena Vista and took four classes in 
 
            1988.  Claimant has not returned to school since 1988 but 
 
            indicated he would like to go back to school to get his four 
 
            year degree and obtain a degree in business mid-management.  
 
            Claimant indicated his desire to obtain a Major status in 
 
            the armed services but would need a four year degree.  He 
 
            hopes to stay in the guard for a minimum of 20 years for 
 
            retirement purposes.  He indicated there was a timetable in 
 
            which he had to get his degree by October 1995 but now 
 
            indicates that that has changed and he now does not have to 
 
            meet the degree requirements until later.  He has nine years 
 
            to go until his 20 year retirement.  Claimant testified he 
 
            was a first lieutenant at the time of his injury in 1989 and 
 
            was an executive officer and was to take over a company in 
 
            the summer of 1989.  Claimant said that he would have been 
 
            back on active guard duty after having been on inactive 
 
            leave when his back problems started and upon the advice of 
 
            the doctor, he was told to get out for at least one year.  
 
            Claimant said he was inactive in May of 1989 through 
 
            February of 1991.  He described the inactive status as 
 
            requiring him to be subject to call but not required to go 
 
            on weekend drills or annual training and that you don't 
 
            receive pay and the time doesn't count as far as retirement 
 
            (Jt. Ex. 1, p. 29).
 
            
 
                 Claimant said that in order to regain his practice 
 
            status in February 1991, he had to take a physical which was 
 
            done by a Colonel Ruben Altmam a doctor chosen by the Guard.  
 
            Claimant is currently a company executive officer, second 
 
            command.  He takes over for the company commander when the 
 
            commander is gone and runs errands.  He is also responsible 
 
            for the recruiting program and other administrative tasks.  
 
            Claimant described the one weekend a month that is required 
 
            and what happens during that one weekend and two weeks of 
 
            summer or winter camp.  He indicated that on the Sunday of 
 
            that weekend there is more training and physical exercises 
 
            which includes jogging and running.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 At the time of his deposition in November of 1991, 
 
            claimant said that he was not having any type of physical 
 
            problems and was intending to stay in the national guard  
 
            until he retires.  He indicated that after 20 years of 
 
            service you are locked in with retirement.
 
            
 
                 Claimant testified that he must pass the physical 
 
            fitness test each year and in this test there are so many 
 
            pushups required in a two minute time, 60 sit-ups and a two 
 
            mile run that is to be done within certain time restraints.  
 
            He said he has passed these tests and acknowledged that some 
 
            of these things he does as required activities were not to 
 
            be done due to his injury.  He said he is still doing these 
 
            exercises but contends he does them with pain and lives with 
 
            the pain for the next several weeks.  He said he doesn't 
 
            elaborate his back problems to the government.  His best 
 
            score now is 250 and before his injury it was around 300 and 
 
            claimed he was in excellent condition before his injury.
 
            
 
                 Claimant related that his work injury on Friday, March 
 
            3, 1989 occurred while he was bending over a box to pick up 
 
            a couple of gears and felt a sharp pain in his hip.  
 
            Claimant said it felt like a pinched nerve but he wasn't 
 
            really sure what had happened and didn't know if he had 
 
            pulled a muscle while bending over the box or what.  
 
            Claimant returned to work the following Monday and still had 
 
            the same pain in his hip, but it was also in his lower back.  
 
            Claimant said that this low back pain did not start hurting 
 
            him before he returned to work on March 6, 1989 and 
 
            continued to work on that day.  Claimant said it continued 
 
            to bother him and was getting worse and on March 7, 1989, he 
 
            went to the doctor.  At that time he was having muscle 
 
            spasms and placed on medication and the doctor wanted him to 
 
            start a physical therapy program that day.  On March 8 and 
 
            9, 1989, claimant returned to work and worked until he had 
 
            back surgery on May 30, 1989, except for one day in which 
 
            the parties agreed claimant was off on May 23, 1989.
 
            
 
                 Claimant described the various medical services he 
 
            received and also the work he was doing in the periods of 
 
            time he was working and then off work for healing periods.  
 
            The parties have stipulated regarding claimant's healing 
 
            period so that is not an issue herein.  Those periods total 
 
            22.714 weeks.  
 
            
 
                 Claimant testified regarding defendant employer's 
 
            voluntary layoffs.  After a layoff in 1990, he returned to 
 
            work in November of 1990.  Claimant testified regarding the 
 
            various positions the company was having him do in order to 
 
            accommodate him as he was still having back problems.
 
            
 
                 Claimant testified that in May of 1991, the job 
 
            assignment with the Boromatic machine was going to be phased 
 
            out.  In order to stay in the department, he bid on a job 
 
            that was open.  The job was the auto drill and tap job again 
 
            which he had formerly worked on.  Claimant indicated that at 
 
            the time he bid on the auto drill and tap job, since he had 
 
            done it before and was doing it part-time, it was not 
 
            causing him any problems physically.  Eventually, when 
 
            claimant started running the auto drill and tap job day 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            after day, he indicated his back started aching and kept 
 
            getting worse and he began taking Advil and some other lower 
 
            back pain pills.  Claimant indicated he talked to Mr. Gates 
 
            about the problems the job was giving him and claimant saw 
 
            Dr. Morrison around July 3, 1991.  Claimant indicated he 
 
            discussed various jobs with Mr. Gates and there was a 
 
            discussion about being sent to a doctor again and the 
 
            claimant indicated he thought he had better quit.  Claimant 
 
            indicated that the employer suggested a rehabilitation 
 
            progam rather than claimant quitting at that point.  
 
            Claimant was asked if he would consider and, in fact, did 
 
            end up bidding on the gear hobbing job which appeared 
 
            claimant would have time to walk around after loading the 
 
            machine and waiting for the cycle about an hour.  Claimant 
 
            indicated that this job required bending over baskets, 
 
            picking up gears and loading them into a machine and was 
 
            similar to what he had done when he was working on the suja 
 
            chucker job in which he would grab with each hand gears 
 
            weighing approximately 10 pounds each. 
 
            
 
                  After deciding what to do claimant said he officially 
 
            quit working for defendant employer on July 12, 1991.  
 
            Claimant also emphasized at that time that driving to and 
 
            from work was causing him pain and spasms and that sitting 
 
            in a car or in a sitting position caused the pain to become 
 
            worse.  Claimant contended that in a 36 mile distance he 
 
            would have to get out and walk around twice.  Claimant said 
 
            that before quitting his job with defendant employer, he did 
 
            not ask Mr. Gates whether they could put him into a low 
 
            stress job until another permanent job shows up.  He has not 
 
            sought employment or inquired with defendant employer for 
 
            any job since he quit.
 
            
 
                 Claimant related the various jobs he has applied for or 
 
            sought employment (Jt. Ex. 1, pp. 75-76).  Claimant 
 
            acknowledged that as of this time he has no restrictions 
 
            from a doctor, including R. Schuyler Gooding, M.D.  Claimant 
 
            also understood that a year after his surgery, he could 
 
            pretty much do what he thought he could do.  Claimant was 
 
            generally asked if there was any activities other than 
 
            driving or riding in a car that he had previously testified 
 
            to that he can't do today that he could do prior to March 3, 
 
            1989.  Claimant responded that there is nothing that he can 
 
            think of he did before that he just absolutely could not do 
 
            now (Jt. Ex. 1, p. 8).  He did indicate he gave up bow 
 
            hunting deer.  Claimant said he could do the Boromatic 
 
            machine job with defendant employer and possibly some other 
 
            jobs but he indicated he couldn't do other past jobs.  
 
            Claimant went over the various things in greater detail as 
 
            far as recreation that he can't do now that he could do 
 
            prior to March 3, 1989.  These include various activities of 
 
            hunting, running, playing basketball, baseball, holding his 
 
            children, etc.  It appears that he either can't do these 
 
            jobs, is limited, or in great pain when he does them.
 
            
 
                 Claimant was asked as to any other injuries he may have 
 
            had, particularly involving his back prior to March 3, 1989.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Claimant related some instances which are of no significance 
 
            nor were there any residue resulting from any of said 
 
            injuries that would involve claimant's current condition.
 
            
 
                 Claimant indicates is not claiming a traumatic injury 
 
            on March 3 or March 8, 1989, but that it was a cumulative 
 
            back injury that resulted in a cumulative injury over a 
 
            period of time while working for defendant employer which 
 
            resulted from the various bending and stooping that resulted 
 
            from his work.
 
            
 
                 On cross-examination, claimant for the first time 
 
            indicated that he is now a reserve deputy and has been for a 
 
            little over a year.  He indicated he has gone through 30 
 
            hours of training, range qualifications, went to the Iowa 
 
            Law Enforcement Academy learning heavy weapon, revolver, 
 
            semi-automatic use, CPR, etc.  He indicates he is a 
 
            volunteer and rides with a full-time deputy sheriff.  He 
 
            estimated in six months he rode approximately 200 hours in 
 
            the car.  He indicated that he does other functions other 
 
            than riding in the car while doing this volunteer work.  He 
 
            indicated the shifts are eight hours and he averages five 
 
            hours on a shift.  Claimant had some criminal justice 
 
            education when he was in school and has applied for a 
 
            full-time job as a deputy sheriff with the Taylor County 
 
            Sheriff Department before he got into the deputy reserves.  
 
            He felt that working in the reserves may help him to get a 
 
            job.  Claimant indicated that the Taylor County Sheriff 
 
            would like him to work full time for him if a job opens.
 
            
 
                 On cross-examination, claimant also indicated he was 
 
            intending to start school at Northwest Missouri State on 
 
            June 16, 1993, but does not know if he will take a full 
 
            load.  Claimant also indicated he has applied for a deputy 
 
            sheriff position with Montgomery County.  He indicated he 
 
            has passed the physical agility test.
 
            
 
                 On cross-examination, claimant was asked about certain 
 
            activities.  He acknowledged that he had participated in the 
 
            martial arts but was not doing this and had a Tae Kwon Do 
 
            red belt but was not doing martial arts on the day of the 
 
            injury.  He emphasized he is a very active person.  He 
 
            acknowledged he does paint cars on his own and had done this 
 
            for ten years now.  He acknowledged he didn't tell Dennis 
 
            Gates about the March 3, 1989 incident because he thought 
 
            other activities could have caused it.  Claimant said he 
 
            hadn't painted a car for about a year prior to March 3, 
 
            1989, and is not playing basketball or softball.  He 
 
            indicated he last played basketball approximately one year 
 
            ago in March of 1992, at which time he broke his thumb.
 
            
 
                 Claimant was asked about his voluntary layoffs in 1990 
 
            and 1991, and claimant indicates that driving to and from 
 
            work bothered him and he needed to recuperate.  Claimant 
 
            acknowledged that in March of 1993, he drove to Fort 
 
            Benning, Georgia, in connection with national guard 
 
            training.
 
            
 
                 Claimant was then referred to joint exhibit 5, pages 
 
            1,2 and 3, in which he had an army physical fitness test and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            scored 250 points out of 300.  He did 55 pushups in two 
 
            minutes and did the two mile in 12 minutes and 42 seconds 
 
            and obtained a perfect score.  This test was on October 1, 
 
            1991, approximately three months after he quit the company.  
 
            That same exhibit, on page 4, indicates claimant had no 
 
            limitation and good strength in his leg.  The rest of the 
 
            doctor's writing is illegible as to comments concerning his 
 
            back.
 
            
 
                 Claimant said he is combat fit to be company commander 
 
            but indicated it would be for a short time and that he 
 
            couldn't do maximum effort.  It appears to the undersigned 
 
            that claimant, when it comes to the national guard, performs 
 
            tests and is very fit, but when it comes to non-national 
 
            guard situations, he is not in good condition to do certain 
 
            things that may be just as strenuous or even less strenuous.  
 
            Claimant indicated that if he told the doctor he couldn't do 
 
            certain things such as sit-ups and pushups, then he would be 
 
            out of the national guard.  He contends he downplays his 
 
            condition so that he can stay in the guard.  The fact is he 
 
            does do the required exercises to pass the physical tests.  
 
            It would be expected that he would put good effort in and 
 
            not play lame whether he wanted to be in the national guard 
 
            or not when it comes to attempting to pass any tests.  
 
            Claimant seems to send mixed signals.  If it wasn't that he 
 
            wanted to stay in the guard so he could eventually reach his 
 
            20 year retirement minimum in approximately nine years he 
 
            may otherwise not have put forth the effort as obviously he 
 
            doesn't want to continue working for defendant employer.  
 
            One of the apparent reasons is that driving to and from work 
 
            affects his back.  Claimant's position is that he is not 
 
            being dishonest but is downplaying his physical condition 
 
            when it comes to the national guard.  It appears to the 
 
            undersigned that claimant wants to display excellent 
 
            physical condition when it comes to national guard and those 
 
            good benefits which have financial rewards but also wants 
 
            benefits from defendant employer based on the fact that he 
 
            is disabled.
 
            
 
                 Claimant then was referred to joint exhibit 5, page 30, 
 
            where he was hurt while running a two mile run.  Said 
 
            exhibit reflects that claimant was running at slower pace 
 
            than he usually runs because the group was slower.  It 
 
            appears that he had the capabilities of running faster than 
 
            this group of national guard men in this particular run.  
 
            Claimant contends that because of running slow it took more 
 
            energy and he did end up with what appears to be a pulled 
 
            hamstring muscle.  Claimant emphasized he doesn't have 
 
            trouble running and has no limitation when doing pushups.
 
            
 
                 Mr. Gates testified at the hearing and through his 
 
            deposition on January 17, 1992, represented by joint exhibit 
 
            2. He testified he has been employed by defendant employer 
 
            since November of 1979 and has been the human resource 
 
            manager since June 1981 and deals with workers' 
 
            compensation, etc.  He said claimant was off March 8, 1989 
 
            through April 16, 1989, and on his return on April 17, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant told him that his situation was not work related.  
 
            Mr. Gates said he told claimant he would work with the 
 
            claimant.
 
            
 
                 Mr. Gates said he called claimant again the next week 
 
            and claimant told him it was not work related and that he 
 
            was taking therapy treatment.
 
            
 
                 Mr. Gates indicated that when a person has even a pain 
 
            in his leg such as claimant contended on March 3, 1989, the 
 
            company procedure is for the employee to report it to the 
 
            foreman.  He said nothing was reported under that procedure.  
 
            Mr. Gates indicated that defendant employer tried to 
 
            accommodate claimant and in July 1991, when he was able to 
 
            accommodate claimant with the gear hobbing machine job, he 
 
            thought this was a better job for the claimant and could 
 
            better accommodate him.  He said claimant told him to put in 
 
            a bid for that job and on July 12, 1991, he called claimant 
 
            to tell him that he got the job for him and the claimant 
 
            then changed his mind.  Mr. Gates said the claimant told him 
 
            he didn't want to make the trip back and forth driving.
 
            
 
                 He said that on July 2, 1990, he talked to claimant 
 
            about obtaining medical care and said that claimant could 
 
            have gone through this while working at his job at the gear 
 
            hobbing machine.  Mr. Gates emphasized that claimant would 
 
            still be at the plant if claimant hadn't quit and that the 
 
            plant could have accommodated claimant with his seniority.
 
            
 
                 Mr. Gates said there are other employers in the area 
 
            that claimant could work for and that one particular 
 
            company, Pella Rolscreen, added 300 jobs.  He acknowledged 
 
            that claimant is very physically active and that claimant is 
 
            not content to be inactive.
 
            
 
                 Mr. Gates indicated that there was no company record of 
 
            his March 1989 conversation with claimant but that if 
 
            claimant had said he had an injury or had a pain while 
 
            lifting a part, the situation would have been investigated.  
 
            Mr. Gates said that until the time that claimant went to Dr. 
 
            Gooding and Dr. Gooding indicated on April 27, 1989 that 
 
            claimant's back problems are work related, claimant never 
 
            even thought of his condition being work related (Jt. Ex. 2, 
 
            p. 14; Jt. Ex. 3, p. 1).
 
            
 
                 Mr. Gates said that when claimant told him he was 
 
            leaving he sent claimant a form and claimant filled it out 
 
            (Jt. Ex. 4, p. 65).
 
            
 
                 Joint exhibit 3, page 1, has been previously referred 
 
            to as the April 27, 1989 letter of Dr. Gooding who referred 
 
            to the fact that because claimant has been employed by 
 
            defendant employer over the past eight years and the past 
 
            two years has worked at a job which requires constant 
 
            bending and lifting, he indicated it appears claimant's low 
 
            back problems are work related.  The doctor wasn't aware of 
 
            any specific incidents or activities which would account for 
 
            the disc problem.
 
            
 
                 Joint exhibit 3, pages 41, 46 and 48, reflect that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant had a microdiscectomy left L5-S1 level on May 31, 
 
            1989.  The undersigned notes in various medical records that 
 
            in neither the history or reasons for admission there is 
 
            comments that claimant's employments over the past two years 
 
            requires frequent bending and lifting.  The undersigned sees 
 
            nothing as to claimant's other activities that are non-work 
 
            connected and it is obvious from claimant's testimony and 
 
            confidence in himself that he was actively engaged in other 
 
            non-work activities whether it be playing various sports, 
 
            martial arts, painting cars, doing other physical activities 
 
            on his own or in connection with the national guard as 
 
            required in the national guard training.
 
            
 
                 Joint exhibit 3, page 21, is the medical records of 
 
            claimant indicating that on April 26, 1992, he injured his 
 
            left thumb while playing basketball.
 
            
 
                 Joint exhibit 3, page 14, is a letter of Michael J. 
 
            Morrison, M.D., that was in response to claimant's 
 
            attorney's letter of May 21, 1990.  Dr. Morrison indicated 
 
            that on the date of obtaining a history from the claimant 
 
            there was no specific account of an injury to his back at 
 
            work.  He therefore was unable to have an opinion regarding 
 
            the causal connection of his back condition as related to an 
 
            on-the-job injury.
 
            
 
                 Joint exhibit 3, page 17, is a September 24, 1991 
 
            letter of Dr. Morrison in which he again indicated that he 
 
            would be unable to have an opinion regarding the causation 
 
            of claimant's back condition as related to an on-the-job 
 
            injury.
 
            
 
                 On page 15 of joint exhibit 3, Dr. Morrison on November 
 
            26, 1991, wrote again that he had no information in his 
 
            records to suggest or document that claimant had a 
 
            work-related injury.  In this report, he did indicate that 
 
            as far as a permanent impairment following claimant's lumbar 
 
            laminectomy, he opined that claimant had a 10 percent 
 
            permanent impairment to claimant's body as a whole.  He also 
 
            opined that claimant would have permanent restrictions of no 
 
            frequent bending over, squatting, kneeling or crawling and 
 
            not be expected to do heavy lifting greater than 30 to 40 
 
            pounds on a frequent basis since this would have a tendency 
 
            to re-aggravate his lower back condition.
 
            
 
                 On March 12, 1990, Dr. Gooding opined that claimant had 
 
            a 15 percent permanent partial disability to the whole 
 
            person because claimant's low back anatomy has been 
 
            permanently altered virtually because of the on-the-job 
 
            injury which required surgery.  He also gave some lifting 
 
            restrictions and claimant was not to routinely do bending, 
 
            lifting and carrying or to stand or sit for extended periods 
 
            of time without frequent opportunities to get up and move 
 
            around (Jt. Ex. 3, p. 9).
 
            
 
                 Joint exhibit 7 is the income tax returns of claimant.  
 
            They verify claimant's testimony that he was financially 
 
            better income wise from 1989, 1990, 1991 to 1992, 
 
            progressively.  In 1991 and 1992, claimant's W2 shows it 
 
            includes active duty wages, also.  Joint exhibit 6, page 11, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            is the October 7, 1992 report from the Iowa National Guard 
 
            indicating claimant was promoted to the rank of captain.  
 
            Page 12 of this exhibit, dated January 30, 1992, is a 
 
            national guard order ordering claimant to active duty at 
 
            Fort Benning March 22, 1992 until June 15, 1992.  It 
 
            indicates thereon that claimant should report in a 
 
            satisfactory physical condition, able to pass the army 
 
            physical fitness test.
 
            
 
                 Claimant filed two actions alleging injuries on March 3 
 
            and March 8, 1989.  It is obvious from the record and also 
 
            from claimant's attorney's comment that at most we have one 
 
            cumulative injury and that the reason two petitions were 
 
            filed was for additional protection to the claimant to make 
 
            sure the correct injury date was alleged.  We will proceed 
 
            on the basis of alleged March 8, 1989 cumulative back injury 
 
            represented by file No. 918693.  On the prehearing order, 
 
            all the issues are identical as to the alleged injury dates 
 
            and file numbers.
 
            
 
                 Claimant contends that he incurred an injury that arose 
 
            out of and in the course of his employment on March 8, 1989.  
 
            Claimant emphasized that he is not contending any traumatic 
 
            injury on that date but that he has incurred a cumulative 
 
            low back injury.  The medical records show that claimant 
 
            apparently first developed a pain on Friday, March 3, 1989, 
 
            and that by the next Monday and Tuesday the pain became 
 
            worse and he did not come to work on March 8, 1989.  Dennis 
 
            Gates, who is the workers' compensation and human relations 
 
            department director, indicated that claimant did not notify 
 
            him on that date of an injury or pain and indicated on more 
 
            than one occasion up until around the middle of April 1989, 
 
            that he did not know the cause and did not indicate that he 
 
            incurred any work injury.  It appears that it wasn't until 
 
            Dr. Gooding, in an April 27, 1989 letter represented by 
 
            joint exhibit 3, page 1, in which he indicated from the 
 
            history claimant gave him, that it appears claimant's low 
 
            back problems are work related, that claimant then took the 
 
            position that he did incur a work-related injury.
 
            
 
                 Claimant emphasized how good a condition he has been in 
 
            and all the activities that he has participated in prior to 
 
            March 3, 1989.  It is evident that he considers himself to 
 
            have continued to keep himself in very good physical shape 
 
            but indicated he does have a low back condition that is 
 
            disabling him.
 
            
 
                 Claimant has been very active in the national guard and 
 
            is extremely motivated to continue at all costs his active 
 
            participation in the national guard as he desires to put in 
 
            20 years minimum and obtain a good retirement.  He has nine 
 
            years to go.  The evidence shows that one must pass not only 
 
            a physical fitness test but that the guidelines and the 
 
            standards set by the national guard are very substantial.  
 
            Claimant must do certain things as far as pushups, running, 
 
            etc.
 
            
 
                 In order to keep in shape in order to comply with the 
 
            rigid national guard criteria, claimant indicates that he is 
 
            doing more than he is able to do and on the other hand is 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            contending he has a substantial disability which prevents 
 
            him from working at gainful employment particularly at the 
 
            defendant corporation.  Claimant insists that he is not 
 
            being dishonest by "pretending" that he is not injured or 
 
            has no disability so that he can stay in the national guard 
 
            and yet does very strenuous exercises, in some instances 
 
            coming up with a perfect score and in other instances coming 
 
            up with 250 out of 300 points.  When he sheds his national 
 
            guard uniform and gets into the non-military world, he is 
 
            allegedly substantially disabled.  Claimant emphasized that 
 
            he is and has been an active person.  The undersigned 
 
            believes he still participates to a substantial degree in 
 
            many or most activities he did before his alleged March 3, 
 
            1989 injury.  Claimant was involved in a multitude of 
 
            sports, in martial arts in addition to keeping in shape in 
 
            order to comply with the national guard physical fitness 
 
            standards.  The record does not show that claimant incurred 
 
            any injury at any other place.  The record also shows that 
 
            claimant did not incur a trauma on March 3, or 8 of 1989.  
 
            He alleges a cumulative low back injury.  Claimant has the 
 
            burden of proof.  Claimant is and has been involved in many 
 
            activities in which his condition resulting in a surgery 
 
            could just as likely have caused or contributed to 
 
            claimant's current alleged disability as any alleged work 
 
            injury.  At sometime claimant himself did not believe he had 
 
            a work injury and it appears that not until Dr. Gooding made 
 
            the suggestion in April 91, that claimant then took that 
 
            position.  It is obvious that Dr. Gooding was given the 
 
            history of strictly claimant working at a repetitive type 
 
            job involving bending and stooping but obviously did not 
 
            know of claimant's other activities that involved running, 
 
            pushups, sit-ups and army active duty training.  
 
            
 
                 Dr. Morrison on three separate occasions represented by 
 
            joint exhibit 3, pages 14, 15, & 17, could not opine that 
 
            claimant's back condition was related to any job injury.  He 
 
            had the same information as Dr. Gooding.  In fact, Dr. 
 
            Morrison indicated that claimant had informed him of no 
 
            specific job injury when he gave him a history.  There is 
 
            two impairment ratings issued in this case, one by Dr. 
 
            Morrison of 10 percent and one by Dr. Gooding of 15 percent.  
 
            The mere fact there is an impairment rating does not mean 
 
            that it had to be as a result of work injury.
 
            
 
                 The undersigned therefore finds that claimant has 
 
            failed to carry his burden that he incurred an injury that 
 
            arose out of the course of his employment on either March 8 
 
            or March 3, 1989, and that claimant's medical condition is 
 
            just as likely to have occurred or to have been caused by 
 
            nonwork injury or cumulation of various activities of 
 
            scooping, bending, running, pushing, lifting etc. as his 
 
            work.  The undersigned finds there is no causal relationship 
 
            between any work injury and claimant's alleged medical 
 
            condition, impairment, disability or any surgery that he 
 
            had.
 
            
 
                 Although the above findings disposes of or makes moot 
 
            any other issue the undersigned will comment on concerning 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            the only other remaining issue in this case and that is the 
 
            extent of any permanent disability.  The undersigned has 
 
            found that claimant did not carry his burden to show that he 
 
            incurred an injury that arose out of the course of 
 
            employment.  The evidence in this case shows that claimant 
 
            would have very little industrial disability if he had 
 
            otherwise proven his case.  Claimant was accommodated by the 
 
            defendants and they made substantial effort to accommodate 
 
            claimant and in fact the evidence would indicate that they 
 
            had a place for claimant that he could work and that if 
 
            claimant had not quit voluntarily in July of 1991, he could 
 
            and would have most likely still been there working.  The 
 
            undersigned finds that claimant's reasons for quitting are 
 
            not valid taking into consideration the effort and activity 
 
            he must perform in order to keep up with the national guard.  
 
            Claimant said he has been painting cars for 10 years.  There 
 
            is no offering in the evidence indicating that the painting 
 
            that he does in that regard would take any more or less 
 
            effort than some of the work he was doing at the defendant 
 
            employer, one of which jobs did involve some painting.
 
            
 
                 Claimant would like to work in the criminal justice 
 
            system and work for a sheriff's department.  It appears he 
 
            has spent substantial time on a voluntary nonpaying basis 
 
            riding around and helping a deputy sheriff when he could in 
 
            fact be looking for and obtaining work elsewhere for which 
 
            he would receive some compensation.  Claimant is highly 
 
            motivated to keep up and obtain his retirement with the 
 
            national guard and perform all the physical activities 
 
            necessary but lacks motivation to get a paying job that 
 
            would most likely take less effort than doing some of the 
 
            national guard work.  Claimant gave up a good opportunity 
 
            working for the defendant employer.
 
            
 
                 Claimant claims his back hurt when he drove to 
 
            defendant employer and yet it seems he does considerable 
 
            riding in the car or driving when it comes to national guard 
 
            duty work or training or working for free for the sheriff's 
 
            department.
 
            
 
                 Claimant seems to have had no problems sitting still 
 
            while testifying for approximately two hours plus and, also, 
 
            sitting in the courtroom and yet it appears that he is not 
 
            able to do this when he is in a setting somewhere else.
 
            
 
                 The undersigned questions the claimant's credibility as 
 
            to the extent and alleged cause of his injuries.  As 
 
            indicated earlier the extent of his injuries is moot in 
 
            light of the fact that the undersigned has found that 
 
            claimant did not incur an injury that arose out of and in 
 
            the course of his employment on either March 8 or March 3, 
 
            1989.  Therefore, claimant takes nothing from these 
 
            proceedings.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on March 3, 1989 
 
            or March 8, 1989, which arose out of and in the course of 
 
            his employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of March 3, 
 
            1989 and March 8, 1989, are causally related to the 
 
            disability on which henow bases  claim.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. 
 
            Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
            (1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 It is further concluded that claimant did not incur a 
 
            cumulative injury to his low back on either March 3 or March 
 
            8, 1989, that arose out of the course of claimant's 
 
            employment and that claimant's alleged medical condition, 
 
            his disc surgery and any impairment or disability, is as 
 
            likely to have risen out of nonemployment activities as it 
 
            would have any work activity and that there is no causal 
 
            connection between his alleged disability and any alleged 
 
            work injury.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That claimant takes nothing from this action.
 
            
 
                 That claimant pay costs of this action.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines IA 50309
 
            
 
            Mr Alan H Bjork
 
            Attorney at Law
 
            1300 Des Moines Bldg
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                                                 5-1100; 5-1803
 
                                                 Filed May 6, 1993
 
                                                 Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TERRELL MORRISON,             :
 
                                          :     File Nos. 918693
 
                 Claimant,                :               974076
 
                                          :
 
            vs.                           :
 
                                          :   A R B I T R A T I O N
 
            EATON CORPORATION,            :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Found claimant's injuries on March 3, 1989 and March 8, 1989 
 
            did not arise out of and in the course of his employment.
 
            
 
            5-1803
 
            No industrial disability awarded.  Claimant took nothing as 
 
            to both cases.