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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID A. SPARKS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921128
 
            E.J. BRACH CO.,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ZURICH-AMERICAN INSURANCE,    :
 
            INC.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on November 17, 1992, in 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks permanent partial disability benefits 
 
            as a result of an alleged injury occurring on May 30, 1989.  
 
            The record in the proceeding consists of the testimony of 
 
            the claimant; claimant's wife, Nancy Sparks; Richard Harper; 
 
            Clark Williams; and, joint exhibits 1 through 23.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's May 30, 1989 work injury and claimant's alleged 
 
            permanent disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified in person and through his deposition 
 
            taken August 16, 1991, represented by joint exhibit 16.  
 
            Claimant is a 36-year-old who finished the eighth grade and 
 
            then went back to a community college in 1983 to get his 
 
            GED.  He has no other education, although he started 
 
            attending Black Hawk College and signed up for two courses.  
 
            He indicated there were not enough students and the 
 
            counselor indicated he could go part-time but claimant would 
 
            have to pay for it as the grant would not cover part-time.  
 
            Claimant indicated he sought this schooling voluntarily 
 
            while his workers' compensation claim was pending.  Claimant 
 

 
            
 
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            desired to further his education so he could learn a new 
 
            trade and get on with his life.
 
            
 
                 Claimant related his work history prior to beginning 
 
            employment with defendant employer on March 15, 1982.  This 
 
            work history included working approximately 17 to 19 years 
 
            for his father in the siding construction business.  This 
 
            work was manual labor and involved loading equipment, 
 
            setting up equipment and scaffolding, cutting siding, 
 
            cleaning yards, loading the truck, etc.  Claimant stopped 
 
            this job because he got a job with defendant employer.  
 
            Claimant also related his work history prior to working for 
 
            his father which involved manual labor.
 
            
 
                 Claimant worked for defendant employer until he was 
 
            terminated on June 6, 1992.  He indicated he received a 
 
            letter in the mail from defendant employer.  The letter 
 
            terminated claimant for the reason that claimant had been 
 
            laid off for a year and lost his rights to be called back.  
 
            Claimant said defendant employer refused to rehire him even 
 
            though he thought there would be a job for him after having 
 
            worked ten years for defendant employer.  Claimant indicated 
 
            that in the past before a new company took over defendant 
 
            employer, they would have had a place in the plant for him.
 
            
 
                 Claimant said Clark Williams, the rehabilitation 
 
            consultant, tried to get the defendant employer to hire him 
 
            back.  Claimant indicated that he also called the company.  
 
            He said he would like to get his job back.  Claimant did 
 
            acknowledge that he declined to be a packer because of what 
 
            he thought were his restrictions at the time.  Claimant 
 
            indicated he checked back and that in May of 1991, he was 
 
            told there was a packer job available but claimant said he 
 
            couldn't take it because of restrictions.  Claimant related 
 
            it was his undestanding that his restrictions were no 
 
            lifting, twisting, bending or standing on his feet for a 
 
            long period of time.  When claimant told the plant manager 
 
            about these restrictions, the plant manager told him there 
 
            was no job available for him.  This conversation occurred 
 
            around May 2, 1991.
 
            
 
                 Claimant contends that prior to this date he asked 
 
            defendant employer once a month if there was a job 
 
            available.  He did this at the recommendation of Clark 
 
            Williams, the rehabilitation consultant, who also told him 
 
            he should also write a letter to the employer once a month.
 
            
 
                 Claimant also acknowledged that two jobs were offered 
 
            to him in August of 1990 by defendant employer which were 
 
            allegedly light duty work but claimant contends that the 
 
            nature of the job would be in violation of his restrictions.  
 
            Claimant described the nature of these jobs and what he 
 
            would have to do and explained how they would be violating 
 
            his restrictions.  Claimant testified to various periods of 
 
            time wherein he went back to work and had to take off work 
 
            again and described the various jobs and titles of the work 
 
            he did up to June 6, 1992, when he was terminated.  The 
 
            undersigned does not believe it is necessary to set out the 
 
            particular periods and the particular jobs claimant 
 
            attempted to do, and which jobs he indicates he was not able 
 

 
            
 
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            to do after a while as the parties have stipulated to three 
 
            different periods of time in which claimant was legitimately 
 
            off work and entitled to temporary total disability or 
 
            healing period benefits.  These periods of time are May 31, 
 
            1989 through July 18, 1989; January 27, 1990 through August 
 
            4, 1990; and, October 24, 1990 through May 2, 1991.  The 
 
            undersigned might note that the presentation of claimant's 
 
            testimony was very hard to follow as far as the sequence and 
 
            chronological order.
 
            
 
                 Claimant described how he was injured on May 30, 1989.  
 
            Basically, claimant indicated he was packing a box of candy 
 
            that weighed about 35 pounds.  As he was stepping off a 
 
            skid, his foot got stuck on two boards of the skid and as he 
 
            was falling he caught himself.  He indicated he had pain in 
 
            his back.  Claimant testified as to his medical condition 
 
            and the pain he said results from his May 30, 1989 injury.
 
            
 
                 Claimant said the work hardening program he went 
 
            through did not do him any good and that he was still in 
 
            pain.  This apparently went on for sixteen weeks and then it 
 
            was decided it wouldn't help him anymore.  Claimant contends 
 
            he still continues to have pain and a TENS unit was 
 
            recommended but never provided.
 
            
 
                 Claimant related the various jobs for which he filled 
 
            out applications.  Claimant said he found a job with 
 
            Precision Auto Repair through his brother-in-law.  He 
 
            indicated a friend referred him to this job.  Claimant 
 
            indicated this job encompassed washing and waxing cars, 
 
            cleaning tires, cleaning the inside of cars, and hosing down 
 
            motors.  He said he began this job on July 22, 1992 and 
 
            worked until August 24, 1992.  Claimant contends he lost his 
 
            job because a customer complained he had put scratches in 
 
            the seat leather.  Also, his brother-in-law's boss felt he 
 
            was too slow and also had to redo certain jobs.  Claimant 
 
            indicated he was paid on an average of $5 per hour.  In many 
 
            instances, he indicated that it actually amounted to $4.25 
 
            per hour if you considered the amount he was paid and the 
 
            excess hours it took to do the job.  Claimant indicated that 
 
            he was never told not to work at this particular type of 
 
            job.  It was at this particular job that a surveillance tape 
 
            was taken by defendants and is represented by joint exhibit 
 
            15.  This tape was taken beginning July 29, 1992, around 
 
            9:45 a.m.
 
            
 
                 Claimant testified that he is not working now and the 
 
            only job since his termination from defendant employer in 
 
            June 1992 was the Precision Auto Repair job with his 
 
            brother-in-law.  Claimant indicated he would like to return 
 
            to school and take accounting as he likes working with 
 
            numbers.  Claimant related that he was making $8.89 per hour 
 
            at defendant employer's at the time of his termination.
 
            
 
                 On cross-examination, claimant was asked about or 
 
            referred to various exhibits from various doctors.  He was 
 
            referred to the fact that surgery was not recommended and a 
 
            bone scan was negative, a CAT scan and myelogram were 
 
            negative, and that an EMG and an MRI were negative.  An 
 
            August 29, 1990 note from Daniel B. Johnson, M.D., indicates 
 

 
            
 
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            he released claimant to work up to six hours per day with a 
 
            weight restriction of 25 pounds (Jt. Ex. 4, p. 57).  The 
 
            physical therapist on August 31, 1990 also released claimant 
 
            with the same restriction and light duty (Jt. Ex. 6, p. 83).
 
            
 
                 Claimant was then asked about the February 20, 1991 
 
            report of J.R. Lee, M.D., in which he indicated claimant's 
 
            restriction of frequent lifting no more than 25 pounds in 
 
            order that he not aggravate his preexisting degenerative 
 
            disc disease (Jt. Ex. 3, p. 48).
 
            
 
                 In October of 1991, claimant was referred for a 
 
            functional capacity test in which the evaluation results 
 
            indicate claimant's ability to lift 20 pounds on an 
 
            occasional basis and 10 pounds on a frequent basis (Jt. Ex. 
 
            2, p. 36).
 
            
 
                 It appeared from claimant's testimony that when he had 
 
            a conversation with his employer in May of 1991 and was 
 
            relating his restrictions and determining what he could and 
 
            couldn't do, he was referring to or relying on Dr. Johnson's 
 
            April 12, 1991 report setting out restrictions in which the 
 
            doctor had the impression that claimant was unable to work 
 
            in any capacity that required standing, twisting, bending or 
 
            lifting.  At that time, he gave claimant an impairment 
 
            rating of 10 percent of the total body (Jt. Ex. 4, p. 53).  
 
            Claimant acknowledged that he never mentioned Dr. Lee or 
 
            Charles Cassel, M.D., when he told the company about his 
 
            restrictions.  He indicated he only knew or related Dr. 
 
            Johnson's restrictions.
 
            
 
                 Nancy Sparks, claimant's wife, testified that claimant 
 
            obtained his job with Precision Auto Repair through her 
 
            brother-in-law as they were not doing well financially.  She 
 
            indicated that claimant could not get a job before this one 
 
            because of his pain.  She indicated she had to help him 
 
            through the door.  She indicated she put hot packs on his 
 
            legs and back.
 
            
 
                 Richard Harper testified that he has been the plant 
 
            manager for defendant employer since March 17, 1990, and 
 
            prior to that time was superintendent at Andy's Candies.  He 
 
            indicated he oversees the well-being of the plant, purchases 
 
            supplies, handles personnel, etc.  He is familiar with 
 
            claimant.  He recalled a conversation on May 2, 1991 with 
 
            claimant.  He indicated that claimant said he was able to 
 
            return to work so he indicated that claimant should report 
 
            on May 3, 1990.  He indicated that claimant said he couldn't 
 
            do the work due to his restrictions.  Mr. Harper then told 
 
            the claimant to report to the licorice department and 
 
            claimant indicated this was beyond his restrictions.  He 
 
            then suggested claimant pick up the scrap at the end of the 
 
            conveyor and pick up papers off the line as claimant could 
 
            then sit or stand during this particular job.  He said 
 
            claimant contended he had done that job before and could not 
 
            do it.  He then indicated he didn't have another job for 
 
            claimant.
 
            
 
                 Mr. Harper went over the various jobs within the 
 
            packing department and related the type of work involved and 
 

 
            
 
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            any weight involved.  He indicated that the packer job or 
 
            department includes different facets such as an inspection 
 
            job and licorice job.  Mr. Harper indicated that he felt 
 
            these jobs would be within claimant's restrictions.  He 
 
            indicated that if there was one particular item that wasn't 
 
            within claimant's restrictions, he could get help.  He cited 
 
            one example that claimant raised in the inspection part - if 
 
            a piece of candy got stuck, claimant would have to use more 
 
            effort to get it loose.  Mr. Harper indicated that there 
 
            would be help to do that and claimant wouldn't have to do 
 
            it.  Mr. Harper indicated that claimant's pay of 
 
            approximately $8.69 per hour would have stayed the same in 
 
            any of these other particular jobs.
 
            
 
                 Mr. Harper then went over the provisions in the union 
 
            contract which indicates that if one is off work for twelve 
 
            months, then the person is considered a voluntary 
 
            termination.  Claimant was sent a letter as to this fact.  
 
            Mr. Harper's letter is indicated by joint exhibit 22, page 
 
            239, said letter being dated May 18, 1991.
 
            
 
                 Mr. Harper acknowledged that he did not explain the 
 
            contract provision to the claimant but said claimant had a 
 
            copy of the contract.  Mr. Harper said that as far as he 
 
            knows the claimant never did call the company regarding 
 
            coming back to work between May of 1991 and May of 1992.  
 
            Mr. Harper again emphasized that the scrap job at defendant 
 
            employer is still a light job and requires lifting about a 
 
            10 gram piece of candy.  Mr. Harper again emphasized that 
 
            the inspection packer job complies with claimant's 
 
            restrictions.
 
            
 
                 Mr. Harper referred to a letter written July 30, 1992 
 
            (Jt. Ex. 22, pp. 234 and 235) which not only explains some 
 
            of the things to which Mr. Harper has testified but also 
 
            indicated to claimant that they were going to be hiring some 
 
            more temporary and full-time employees and told claimant 
 
            what he could do if he was interested in the job.  Mr. 
 
            Harper said claimant never applied.  He indicated the 
 
            company was hiring about 80 to 90 more people within the two 
 
            months after that time.  Mr. Harper indicated the jobs that 
 
            were being offered to claimant were full-time jobs and not 
 
            made up jobs.
 
            
 
                 On cross-examination, Mr. Harper was asked when he 
 
            referred to a packer why he didn't specifically mention the 
 
            inspection or licorice job.  Mr. Harper indicated that under 
 
            the contract all of these are considered packer jobs.  He 
 
            again referred to his letter of July 30, 1992 (Jt. Ex. 22, 
 
            pp. 234 and 235).  Mr. Harper indicated that 75 percent of 
 
            those 80 or 90 people they were hiring were for packer jobs.
 
            
 
                 Clark Williams, a rehabilitation consultant, testified 
 
            that he was assigned to claimant's case in 1992 and that his 
 
            job was to get claimant back to work.  He indicated he was 
 
            not aware at the time that claimant was a voluntary quit.
 
            
 
                 Mr. Williams' first meeting with claimant was May 14, 
 
            1992, when he took a history, etc.  Mr. Williams indicated 
 
            that the medical restrictions seemed to have considerable 
 

 
            
 
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            diversity.  He said Dr. Johnson's was fairly restrictive and 
 
            Dr. Lee's was fairly unrestricted and had only a 25 pound 
 
            weight limit.  Mr. Williams stated at the time of his 
 
            contact with claimant, claimant was home caring for the 
 
            children as claimant's wife had returned to work and he 
 
            needed to care for his children.  He indicated he saw 
 
            claimant a total of three times and that he liked claimant 
 
            but thought claimant was very much caught up with Dr. 
 
            Johnson's restrictions.  Mr. Williams said that after he saw 
 
            the video tape (Jt. Ex. 15), he concluded that claimant is 
 
            capable of doing more than he understood previously.  Mr. 
 
            Williams commented that he thought claimant was more 
 
            interested in caring for his children than looking for work.
 
            
 
                 Daniel B. Johnson, M.D., a neurologist, testified 
 
            through his deposition on September 17, 1992.  He indicated 
 
            he first saw claimant on February 26, 1990 upon referral 
 
            from Dr. Cassel.  The doctor indicated that on taking the 
 
            history he felt claimant had a good history for bilateral 
 
            lumbar radiculopathy.  After two visits to him and since his 
 
            examination was normal, the CT scan, myelogram and EMG were 
 
            normal, the MRI scan and his lumbar spine were essentially 
 
            normal, he could not find a specific reason why claimant was 
 
            in pain, but he was treating him as a chronic pain syndrome 
 
            and he put him on medication.  The doctor indicated that his 
 
            10 percent impairment rating of claimant was due to 
 
            claimant's work injury.  He was unable to state claimant's 
 
            prognosis because he had not seen him for a year and a half 
 
            and he didn't know his current status.  The doctor was asked 
 
            about his February 12, 1991 letter (Dep. Ex. 2; Jt. Ex. 4, 
 
            p. 54).  The doctor indicated that since claimant was still 
 
            having pain, he suggested a psychological approach to 
 
            chronic pain management but the workers' compensation 
 
            carrier denied this being done.  On cross-examination, the 
 
            doctor acknowledged that his rating and any restrictions he 
 
            gave concerning claimant was based on his last examination 
 
            of claimant in April of 1991, which was approximately a year 
 
            and a half ago.  The doctor also acknowledged that claimant 
 
            has undergone two or three MRI's, some EMG's and nerve 
 
            conduction studies and that those objectively speaking 
 
            showed nothing wrong with claimant.  He also did not notice 
 
            any disc herniation or protrusion of any discs in claimant's 
 
            spine (Jt. Ex. 17, p. 19).  The doctor did not see any 
 
            evidence of a pinched nerve (Jt. Ex. 17, p. 20).  The doctor 
 
            was asked whether he remembered running claimant through any 
 
            particular test to measure the exact amount of claimant's 
 
            decreased range of motion and the doctor replied that he did 
 
            not measure direct amounts.  It was a visual inspection (Jt. 
 
            Ex. 17, p. 22).
 
            
 
                 Charles Cassel, M.D., orthopedic surgeon, testified 
 
            through his deposition taken on November 2, 1992.  He 
 
            testified claimant came in to see him on June 14, 1989.  He 
 
            related the history claimant gave him and the nature of the 
 
            examination.  He stated that claimant seemed to be in some 
 
            discomfort but his incongruently test at the time was 
 

 
            
 
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            negative, his reflexes were present and symmetrical, he had 
 
            slight weakness of the right foot, his great toe extensor, 
 
            otherwise muscle strength appeared to be intact, etc.  The 
 
            doctor related his initial impression but proceeded with a 
 
            myelogram, CT and EMG to further see what may or may not be 
 
            the problem.  He related that these tests were essentially 
 
            negative and he didn't see any need for surgery.  He 
 
            indicated that he wrote out a prescription for his physical 
 
            therapy, a lumbar support and a TENS unit for claimant.  The 
 
            doctor did not know whether the TENS unit was ever provided 
 
            for the claimant.  The doctor indicated that when he saw 
 
            claimant on June 16, 1992 at the request of the insurance 
 
            carrier and employer, he did not nor was he asked to give an 
 
            impairment rating.  There was then questioning concerning 
 
            the surveillance tape that was taken in late July 19, 1992.  
 
            The doctor obviously did not see the tape and, in fact, 
 
            indicated that he does not look at or review such type of 
 
            tapes as he is not a detective and his records indicate that 
 
            his secretary passed that information on to the defendants' 
 
            attorney.  The doctor again emphasized that it has been his 
 
            practice not to view any video tapes in this type of 
 
            proceeding.
 
            
 
                 Claimant's attorney continued over the objection of 
 
            defendants' attorney to ask the doctor some questions that 
 
            would pertain to what claimant allegedly did in the video.  
 
            The undersigned finds said objection is sustained because it 
 
            is hard to answer questions of that nature and with the 
 
            importance that goes with it without the doctor actually 
 
            seeing what the claimant is doing rather than allegedly 
 
            having him, in general, be told what supposedly is in the 
 
            tape.  The undersigned finds that the nature of claimant's 
 
            attorney's question does not truly reflect what was seen by 
 
            the undersigned on the tape.  The doctor did say that any 
 
            activity claimant would do should be applauded and that he 
 
            advised claimant to try to do things he thought he could do 
 
            and that claimant needed to control his pain.  The 
 
            undersigned might note that this didn't actually answer the 
 
            question that was asked, but it shows all the more the 
 
            importance of the doctor viewing the tape if he is going to 
 
            try to address the question because the claimant has taken 
 
            the basic position from his testimony that he is unable to 
 
            work and basically is attempting to leave the impression 
 
            that he is totally disabled. It is not clear whether he 
 
            tried to leave that impression with the doctor but again the 
 
            doctor is not apprised obviously of claimant's total picture 
 
            or contentions from the litigation standpoint (Jt. Ex. 18, 
 
            p. 27).
 
            
 
                 The doctor kept his 10 percent impairment opinion that 
 
            he had issued approximately three years earlier in 1989, and 
 
            did put claimant through a few motion tests.  When asked as 
 
            far as claimant's long time problem with his back, the 
 
            doctor did indicate that it would be difficult to assign his 
 
            entire 10 percent rating to one incident in May of 1989 due 
 
            to claimant's prior back history (Jt. Ex. 18, p. 30).
 

 
            
 
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                 The doctor acknowledged that he heavily relies on the 
 
            claimant's subjective complaints of pain in trying to assess 
 
            and determine what his restrictions are.  He presumes that 
 
            claimant is telling him things correctly.   He also relies 
 
            on the physical exam.  He further indicated, and it would be 
 
            obvious, that if the subjective complaints are not accurate 
 
            then, of course, it would affect any conclusion and opinion.  
 
            Again, there were several additional questions by both 
 
            attorneys as to Dr. Cassel's 10 percent impairment rating.  
 
            It is obvious that the doctor was unable to determine what 
 
            percent of that 10 percent existed before or after 
 
            claimant's May 30, 1989 injury (Jt. Ex. 18, pp. 38-41).
 
            
 
                 There was considerable deposition testimony in this 
 
            case and the doctors in their depositions either referred to 
 
            or testified as to contents of their reports or records that 
 
            are also written exhibits in this case.  The undersigned 
 
            finds no necessity to duplicate or further set any more than 
 
            may be necessary regarding the various reports of the 
 
            doctors or the rehabilitation consultant.
 
            
 
                 Joint exhibit 3, page 44, is a September 22, 1992 
 
            letter from Dr. Lee after which he had an opportunity to 
 
            view the video tape, at least in the abridged form.  
 
            Previously in the record Dr. Lee had issued some 
 
            restrictions which were different than other doctors.  It is 
 
            obvious from his September 22, 1992 letter, in viewing the 
 
            video tape he would change his prior evaluation.  He opined, 
 
            therefore, that claimant is capable of working as a packer 
 
            within the defined functional capacity.  The undersigned 
 
            might note from the evidence presented that he agrees with 
 
            Dr. Lee as to the fact that it would appear in viewing the 
 
            video tape himself, claimant would be able to do those jobs 
 
            or at least make a good sincere effort to try the job offers 
 
            in the packer department, which includes sub departments or 
 
            various classifications.  Dr. Lee still maintained his 
 
            position that pain management with a TENS unit is probably a 
 
            prudent way to manage claimant's present condition.  It 
 
            appears the insurance company had never provided this (Jt. 
 
            Ex. 3, pp. 44 and 46).
 
            
 
                 Joint exhibit 4, page 52, is a letter from Dr. Johnson 
 
            dated October 15, 1992, in which he had a chance to view the 
 
            video tape which is referred to as joint exhibit 15.  
 
            Pursuant to seeing this tape, the doctor noted that claimant 
 
            repeatedly bends at the waist, twists and leans one side to 
 
            the other, and that there was no evidence of any pain 
 
            behavior and the tape would suggest to him that the 
 
            claimant's back was not causing him significant pain during 
 
            vigorous mobility maneuvers.  The doctor concluded it would 
 
            appear that since his last examination of the claimant in 
 
            April of 1991, claimant's back has improved considerably and 
 
            that the 10 percent rating he gave him at that time would be 
 
            less.  As far as work restrictions, he would lift the 
 
            bending, squatting, twisting and turning but thought there 
 
            still should be a lifting restriction but he didn't say to 
 
            what extent the lifting restriction should be.  Joint 
 

 
            
 
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            exhibit 4, page 53, is the April 12, 1991 report of the 
 
            doctor in which he opined a 10 percent impairment rating of 
 
            claimant's body as a whole.
 
            
 
                 Joint exhibit 6, beginning at page 82, is the progress 
 
            report of the Bettendorf Physical Therapy Center dated 
 
            August 31, 1990.  This report reflects that claimant has 
 
            been participating in the Back In Balance program since July 
 
            12, 1990, and has attended at that time 33 of the 35 
 
            scheduled sessions.  The report notes that claimant was 
 
            making progress but that when his workers' compensation 
 
            checks are not on time, it is the industrial rehabilitation 
 
            team's opinion that due to this emotional upset of receiving 
 
            his check that this in itself impedes progress somewhat (Jt. 
 
            Ex. 4, p. 84).  Under the rehabilitation plan of said 
 
            report, this problem is repeated and further states that 
 
            claimant's progress towards his goal of returning to work 
 
            full-time without restrictions is anticipated except due to 
 
            this added stress.  The undersigned might note that even 
 
            though 86.13(4) is not an issue herein, this type of 
 
            conduct, if it occurred, is irresponsible and can only lead 
 
            to more expense to the defendants.  At least this 
 
            independent organization concluded that claimant's 
 
            rehabilitation has been somewhat thwarted, delayed or 
 
            affected by the defendant insurance company's action.  It 
 
            would appear that payments were being made and that the 
 
            insurance company felt they were due and, therefore, such 
 
            conduct on the part of the insurance company cannot be 
 
            condoned.
 
            
 
                 The parties stipulated to any healing period or 
 
            temporary total disability period that may be involved 
 
            herein and that 61.286 weeks have been paid at $225.09.  
 
            They should be paid at the correct rate of $229.56.  The 
 
            only issues are the extent of claimant's permanent 
 
            disability and the causal connection as to any permanent 
 
            disability.  Defendants have paid 61 weeks of permanent 
 
            partial disability benefits prior to this hearing.  These 
 
            were paid at the rate of $225.09.
 
            
 
                 There is considerable medical testimony in this case.  
 
            There is also substantial diversity among the doctors as to 
 
            the particular restrictions that were given this claimant at 
 
            various times, some of those times being of very similar 
 
            periods.  Although it is not unusual that experts will 
 
            disagree on the extent of one's impairment or the extent of 
 
            restrictions, it is concerting and confusing to a deputy 
 
            when there is such diversity on what otherwise would seem to 
 
            be similar facts.  The claimant seems to have been fixated 
 
            up to the present on Dr. Johnson's restrictions which for 
 
            all purposes would leave claimant unable to perform any job.  
 
            Dr. Johnson initially restricted claimant from bending, 
 
            twisting, standing or lifting (April 12, 1991), (Jt. Ex. 4, 
 
            p. 53).  On October 15, 1992, the doctor lifted those 
 
            restrictions but indicated claimant still needed a lifting 
 
            restriction but did not state any amount.  It appears the 
 
            claimant is still operating or acting as though he is still 
 

 
            
 
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            restricted by the doctor's 1991 restrictions.
 
            
 
                 Dr. Lee opined a 25 pound lifting restriction in 
 
            February of 1991 (Jt. Ex. 3, p. 48).  On September 22, 1992, 
 
            after seeing the same video that Dr. Johnson had seen, he 
 
            also changed his opinion.
 
            
 
                 The evidence does now show that claimant's condition 
 
            worsened from February 1991 to April 1991 in which there was 
 
            a substantial difference between Dr. Lee's and Johnson's 
 
            restrictions.  Likewise, the undersigned does not believe 
 
            that after the doctors viewed joint exhibit 15 (video tape 
 
            taken July 29, 1992 of claimant doing certain physical 
 
            activities) claimant suddenly improved.  The undersigned 
 
            believes that what claimant was doing in July 1992 he was 
 
            able to do earlier than that time but through lack of 
 
            motivation and effort, he did not try nor did he have any 
 
            employment until the Precision Auto Repair job in July 1992.  
 
            As indicated earlier, it appeared that claimant was 
 
            operating even in July of 1992 on Dr. Johnson's 
 
            restrictions.  The question may be asked why he then took a 
 
            job in July of 1992 and claimant answered that he needed the 
 
            money and was having financial problems.  It took that to 
 
            motivate claimant.
 
            
 
                 The undersigned finds that the defendant employer made 
 
            a good faith effort to keep claimant employed and to provide 
 
            work for him, even work that the undersigned finds was light 
 
            duty.
 
            
 
                 It seems that the claimant felt any jobs offered were 
 
            not within his restrictions and as indicated earlier, Dr. 
 
            Johnson's restrictions, which were very restrictive, would 
 
            eliminate claimant from doing hardly anything including the 
 
            normal, daily non-work activities.  In looking at the 
 
            medical testimony as a whole, the undersigned questions the 
 
            logic or severity of Dr. Johnson's restrictions.  The 
 
            claimant indicated that he didn't know or at least didn't 
 
            rely upon any restrictions other than Dr. Johnson's, which 
 
            basically left him in an apparent unemployable, totally 
 
            disabled condition.  The extent of these restrictions did 
 
            not help claimant's motivation and appears to lead to 
 
            depression.  The record shows that around the first part of 
 
            May there was a conversation claimant had with the employer 
 
            concerning returning to work to a particular job.  Claimant 
 
            seems to contend that he was familiar with the packer jobs 
 
            and that they were outside of his restrictions.  The 
 
            employer indicates that the packer jobs included certain 
 
            departments within it, one being licorice and one being 
 
            inspection.  The employer described these jobs and it 
 
            appears obvious to the undersigned that these were jobs that 
 
            the claimant could have done or at least should have made a 
 
            very hard, good faith, sincere effort do try if he was 
 
            motivated.  Claimant appears to think that he didn't know a 
 
            packer job included the lighter duty jobs.  It was also 
 
            clear to the undersigned that if there was a particular item 
 
            of a certain job that was outside claimant's restrictions, 
 
            claimant would get help.  The additional problem that 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            existed at that time is that claimant was still operating on 
 
            Dr. Johnson's restriction and the undersigned has serious 
 
            questions as to the extent of those restriction, 
 
            particularly in light of the other medical evidence, Dr. 
 
            Lee's less restrictive restrictions and the video tape.  The 
 
            undersigned finds that if claimant was motivated, he would 
 
            have tried.  This would have been his best opportunity to 
 
            retain his seniority and job status with a company he had 
 
            been with for approximately ten years.
 
            
 
                 Joint exhibit 15 (the video tape) shows claimant doing 
 
            things that without question he would not be able to do if 
 
            Dr. Johnson is correct on his restrictions.  It is obvious 
 
            when Dr. Johnson and Dr. Lee saw that tape, they 
 
            substantially changed their position.
 
            
 
                 The undersigned feels that once this decision is behind 
 
            claimant, he may become more motivated unless he has placed 
 
            himself, partly due to his responsibility, in such a 
 
            situation where he no longer desires to work but rather stay 
 
            home and care for his children instead of hiring someone to 
 
            do same.  His wife is now working whereas it appears while 
 
            he was working, his wife stayed home to care for the 
 
            children.
 
            
 
                 The undersigned finds that claimant was injured on May 
 
            30, 1989, and the parties have so stipulated.  As indicated 
 
            earlier, what is the extent of claimant's permanent 
 
            disability at the present time?  And, is the extent causally 
 
            connected to his May 30, 1989 injury?
 
            
 
                 The greater weight of medical testimony shows that 
 
            claimant does have a permanent impairment that results from 
 
            the May 30, 1989 injury.  The parties agreed earlier that 
 
            when there is a reference to any injury, namely, the 
 
            apparent carpal tunnel around January of 1990, it is not a 
 
            part of this case and is not an issue herein.  There has 
 
            been no testimony in this case as to that affecting his body 
 
            as a whole.  Everything has been related to a back problem 
 
            and as far as the twisting, bending, lifting and squatting, 
 
            that has been totally related to his back and nothing else.  
 
            What effect any carpal tunnel may have on his overall 
 
            motivation and trying to find work or being able to work is 
 
            not in the record.
 
            
 
                 Although there is testimony to the extent that claimant 
 
            had been having back problems prior to May 30, 1989, and 
 
            that Dr. Cassel indicated in his deposition that the 10 
 
            percent impairment he originally opined could have some 
 
            indeterminable amount attributable to a period prior to May 
 
            30, 1989, he was unable to apportion.  He did not see or 
 
            wish to see the video but it is obvious that the effects of 
 
            the video could have an effect on any impairment rating that 
 
            he earlier opined or seems to continue to opine without 
 
            having current up-to-date information.
 
            
 
                 The undersigned finds that claimant does have a 
 
            permanent impairment as a result of his May 30, 1989 work 
 
            injury.  Claimant was performing his job and getting along 
 
            without any apparent trouble prior to May 30, 1989.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Defendants have not shown any residue from any prior injury 
 
            or impairment that was affecting claimant on May 30, 1989.
 
            
 
                 Claimant does have limited transferable skills.  It is 
 
            unfortunate that he did not attempt to go along with the 
 
            employer and attempt to perform the jobs offered to him.  
 
            The undersigned also finds it unfortunate that the insurance 
 
            carrier did not follow the doctor's advice and send the 
 
            claimant to Dr. Weinstein at the University of Iowa for 
 
            treatment under his program.  They also did not try a TENS 
 
            unit that had been recommended on more than one occasion.  
 
            They did not provide any psychological help for claimant 
 
            even though it was recommended.  It is not unusual when a 
 
            person is unemployed for some period of time that that 
 
            person could get discouraged.  As indicted earlier, the 
 
            undersigned believes this is partly claimant's fault by 
 
            hanging onto very rigid restrictions, particularly when 
 
            there were less restrictions in existence and not attempting 
 
            to work.  There is blame on both sides in this regard.
 
            
 
                 Taking into consideration those items that are to be 
 
            considered for determining industrial disability, namely, 
 
            claimant's pre and post May 30, 1989 medical and work 
 
            history; his healing period, which in this case the parties 
 
            have agreed with 61.286 weeks; education; intelligence; 
 
            physical and emotional qualifications; wages prior to the 
 
            injury and after the injury; location and severity of his 
 
            injury; age; motivation; functional impairment; the fact the 
 
            employer did offer claimant work; and, claimant's lack of 
 
            making a concerted effort to find work.  The undersigned 
 
            realizes that when claimant would apply for a job, if he put 
 
            Dr. Johnson's restrictions on the application it would be 
 
            expected that he would not be hired, but since July 1, 1992, 
 
            the new Americans With Disabilities Act could prevent this 
 
            discrimination.  Claimant should look for employment.  In 
 
            regards to any restrictions, the undersigned finds there is 
 
            apparently some lifting restriction but there is no pound 
 
            amount involved that would be considered a current amount.  
 
            It would be fair to say that in no circumstances would it be 
 
            more than a 25 pound limit and the undersigned does not 
 
            believe that the current status of claimant's condition and 
 
            the current status of the medical testimony would call for 
 
            that much of a limited restriction currently.
 
            
 
                 Therefore, considering all of the above, the 
 
            undersigned finds claimant has an industrial disability in 
 
            the amount of 25 percent.  Said benefits shall be paid at 
 
            the stipulated rate of $229.56 per week with benefits 
 
            beginning May 3, 1991.
 
            
 
                 The parties originally stipulated in their prehearing 
 
            report to a $225.09 rate based on two exemptions.  After the 
 
            hearing started, claimant testified to having two dependent 
 
            children.  The undersigned interrupted the hearing and the 
 
            parties then agreed there were four exemptions.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 30, 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an industrial disability work injury 
 
            on May 30, 1989, which caused claimant to incur various 
 
            healing periods and permanent partial disability.
 
            
 
                 Claimant has a loss of earning capacity caused by his 
 
            May 30, 1989 injury.  Claimant does lack motivation.  This 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            lack of motivation has caused claimant to have less loss of 
 
            earning capacity than he might otherwise have.
 
            
 
                 Claimant's only current restriction is a weight 
 
            restriction.  The extent of the weight restriction is not 
 
            definitely determined as to a current status but would not 
 
            be more restrictive than a 25 pound weight limit.
 
            
 
                 Defendant employer made a good faith effort to 
 
            accommodate claimant and attempted to provide claimant with 
 
            employment that would fit within any restrictions that 
 
            existed at the time of the offer.
 
            
 
                 Any benefits are to be paid at the rate of $229.56 
 
            based on four exemptions and a gross weekly wage of $345.60.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant one hundred twenty-
 
            five (125) weeks of permanent partial disability benefits at 
 
            the rate of two hundred twenty-nine and 56/100 dollars 
 
            ($229.56) per week beginning May 3, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid sixty-one (61) weeks of permanent partial disability 
 
            benefits at the rate of two hundred twenty-five and 09/100 
 
            dollars ($225.09).  They had also paid sixty-one point two 
 
            eight six (61.286) weeks of healing period benefits at the 
 
            rate of two hundred twenty-five and 09/100 dollars ($225.09) 
 
            that was owed to claimant as agreed to by the parties.  
 
            These should have been paid at the rate of two hundred 
 
            twenty-five and 56/100 dollars ($229.56).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr William J Bribriesco
 
            Attorney at Law
 
            2407 18th St  Ste 202
 
            Bettendorf IA 52722
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            Mr Jeff Margolin
 
            Attorney at Law
 
            2700 Grand Ave  Ste 111
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1108.50; 5-1803
 
                                          Filed December 9, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID A. SPARKS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921128
 
            E.J. BRACH CO.,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ZURICH-AMERICAN INSURANCE,    :
 
            INC.,                         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-1108.50
 
            Claimant found to have 25% industrial disability which was 
 
            caused by his May 30, 1989 work injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 30, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY KRAUS,                   :
 
                                          :      File No. 921487
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            K-MART CORPORATION,           :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 100 weeks of permanent partial disability 
 
            based on a 20% industrial disability to the body as a whole.  
 
            Permanent impairment rating was 7%, claimant was restricted 
 
            to light work into the indefinite future, claimant was 
 
            restricted to working only four hours per day and three days 
 
            per week into the indefinite future.  Claimant was young, 
 
            age 26, high school diploma and received a BA in college 
 
            while recuperating from this injury.  Claimant had a variety 
 
            of former employment she could still perform.  Employer was 
 
            very generous in providing accommodated work at the place of 
 
            injury and the later city where claimant moved after she was 
 
            married.  Claimant's wage loss from employer was 40% but 
 
            since graduation she can substitute teach part-time one or 
 
            two days a week which she could not do before the injury.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DANIEL M ROBERTS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921538
 
            MAY TRUCKING,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Daniel 
 
            M. Roberts against his former employer, May Trucking, based 
 
            upon an alleged injury of June 27, 1989.  The issues for 
 
            determination are whether there was an injury which arose 
 
            out of and in the course of employment.  The claimant seeks 
 
            healing period and permanent partial or permanent total 
 
            disability compensation.  Claimant also seeks payment of 
 
            medical expenses.  It was stipulated that the rate of 
 
            compensation is $186.63.  The parties used the incorrect 
 
            benefit schedule.  The correct rate based upon the 
 
            stipulated earnings is $186.40 per week.  
 
            
 
                 The case was heard at Des Moines, Iowa, on September 
 
            14, 1993.  The record consists of testimony from Daniel 
 
            Roberts and Lyle Johnston.  The record also contains joint 
 
            exhibits 1 through 18 and defendants' exhibit B.  
 
            
 
                                FINDINGS OF FACT
 
            
 
                 Daniel M. Roberts was employed by May Trucking from 
 
            late March until late June 1989.  Roberts testified that on 
 
            June 27, 1989, he was cranking down the dolly of the trailer 
 
            in order to unhook from it when a fork lift was driven into 
 
            the trailer, without his knowledge, stopping his cranking 
 
            activities sharply.  He testified that it felt like he had 
 
            been stabbed in the lower back.  Roberts telephoned the 
 
            dispatcher and returned to Des Moines, Iowa.  He entered 
 
            into a course of medical care in Des Moines, Iowa.  
 
            
 
                 Daniel Roberts had only been in Iowa for a few months.  
 
            His customary place of residence has been in the state of 
 
            Tennessee.  He returned to Tennessee and entered into a 
 
            course of medical care under the direction of Robert J. 
 
            Smith, M.D., an orthopedic surgeon who had previously 
 
            treated him for a severe left leg injury.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The record in this case clearly shows that Daniel 
 
            Roberts has developed a Darvon dependency and that it 
 
            existed long prior to the date of the injury which is the 
 
            subject of this case.  (joint exhibits 12 & 16).  The 
 
            records in evidence show that Roberts was seeking Darvon 
 
            prescriptions on an almost weekly basis and was seeing more 
 
            than one physician during the same period of time in order 
 
            to obtain multiple prescriptions.  The objective diagnostic 
 
            tests which have been conducted have been uniformly 
 
            interpreted as normal.  There are a few isolated test 
 
            results which have been interpreted as possibly showing an 
 
            anatomical problem, but those test results have not been 
 
            uniformly reproducible.  Accordingly, the greater weight of 
 
            the evidence indicates that there was no anatomical problem 
 
            in the claimant's back.  The greater weight of the evidence 
 
            tends to indicate that claimant made continued complaints in 
 
            order to feed his Darvon habit.
 
            
 
                 Claimant treated with Dr. Smith because he supposedly 
 
            had a great deal of confidence in Dr. Smith as a result of 
 
            the treatment of the previous leg injury.  After reviewing 
 
            all the evidence in the record of this case the undersigned 
 
            likewise has a high opinion of Dr. Smith.  It is found that 
 
            Dr. Smith is correct in his reports found at pages 118 
 
            through 120 of exhibit 16.  Namely, that the claimant had 
 
            reached maximum medical improvement on or about January 19, 
 
            1990, that he was physically capable of returning to his 
 
            former job as a truck driver and that he had no permanent 
 
            impairment as a result of the alleged injury in this case.  
 
            The assessment by Dr. Smith is corroborated by the 
 
            assessment of this case made by John H. Kelly, M.D., a Des 
 
            Moines, Iowa, orthopedic surgeon.  The undersigned finds 
 
            that the assessment made by Dr. Kelly at pages 29 through 35 
 
            of joint exhibit 3 is correct.  
 
            
 
                 The credibility of the claimant's complaints in this 
 
            case is highly suspect.  The fact that the surgery made no 
 
            substantial change in the claimant's complaints is 
 
            considered by the undersigned to be very strong evidence 
 
            that the condition the surgery addressed was not the source 
 
            of the claimant's complaints.  It is also noted that 
 
            according to the claimant he moved to Iowa because of a 
 
            relationship with a lady friend and that he left Iowa 
 
            because the relationship had ended.  The record does not 
 
            contain a reliable showing of the point in time at which the 
 
            relationship ended.  In particular, it is does not show 
 
            whether it was before or after the date of the alleged 
 
            injury.
 
            
 
                 Having observed the claimant's appearance and demeanor 
 
            and considered it in light of the other evidence in the 
 
            record of this case, it is found that the claimant has 
 
            failed to establish that he is a reliable, credible witness.  
 
            When all the evidence in the record of this case is 
 
            considered, it is determined that the claimant has failed to 
 
            show by a preponderance of the evidence that it is probable 
 
            that he sustained any significant injury on or about June 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            27, 1989.  The incident which he described at hearing is not 
 
            the type of event which would be expected to cause serious, 
 
            if any, injury.  The event was unwitnessed by any 
 
            disinterested persons.  In early March 1989, claimant 
 
            obtained a prescription of Darvon for back complaints with 
 
            right leg pain.  (ex. 17, p. 122).  Nevertheless, the 
 
            claimant apparently convinced Dr. Kelly that he had an 
 
            injury.  It is therefore found that claimant did injury his 
 
            back in the manner described at hearing.  It is further 
 
            found, however, that he had recovered from that injury no 
 
            later than January 19, 1990, in accordance with the report 
 
            from Dr. Smith.  (exhibit 16, page 141).  
 
            
 
                 With regard to the medical expenses it is found that 
 
            any expenses incurred by Roberts subsequent to January 19, 
 
            1990, were probably not incurred in obtaining treatment for 
 
            the June 27, 1989 injury.  They appear more likely to have 
 
            been efforts on his part to maintain his Darvon addiction.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 In this case the claimant's credibility is not well 
 
            established.  Accordingly, little weight can be given to his 
 
            testimony, statements and complaints where independent 
 
            corroboration is absent.  
 
            
 
                 With regard to the occurrence of the injury itself, 
 
            there is considerable question since the incident to which 
 
            the injury is attributed does not appear to have been 
 
            particularly traumatic and also due to the fact that it was 
 
            unwitnessed.  Nevertheless, claimant saw medical 
 
            practitioners who did not dispute the fact of injury.  
 
            Accordingly, it is determined that the claimant has carried 
 
            the burden of proving by a preponderance of the evidence 
 
            that he sustained an injury on June 27, 1989.
 
            
 
                 The nature and extent of the injury is disputed.  It is 
 
            determined that the claimant has failed to prove by a 
 
            preponderance of the evidence that any permanent disability 
 
            resulted from the injury.  To to contrary, the record of 
 
            this case seems to indicate that the claimant engaged in a 
 
            long and continuing course of medical care for the apparent 
 
            purpose of obtaining prescription medications, a practice 
 
            which had been ongoing prior to the injury in this case.  
 
            The objective diagnostic tests have not generally 
 
            corroborated the existence of any significant of permanent 
 
            injury.  In view of the intervening time between 1989 and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            when surgery was performed, there had been ample opportunity 
 
            for the claimant to experience other trauma.  The Las Vegas 
 
            incident is only one such trauma.  In view of the claimant's 
 
            lack of credibility, he is unable to establish the lack of 
 
            any intervening trauma or even the accuracy of his 
 
            description of the Las Vegas incident.  The greater weight 
 
            of the evidence corroborates the assessments of the case 
 
            made by Dr. Smith, namely that claimant was able to return 
 
            to his work as a truck driver as indicated in the January 
 
            19, 1990 report.  (ex. 16, p. 119).  Earlier reports had 
 
            indicated that "...we're about to reach the point of maximum 
 
            improvement..."  The report of January 19, 1990, is the 
 
            first which indicates that maximum improvement has been 
 
            obtained and that there is no permanent impairment.  
 
            Accordingly, that report marks the end of the claimant's 
 
            entitlement to temporary total disability compensation.  
 
            There is certainly evidence in the record which could be 
 
            relied upon to indicate that the period of recovery actually 
 
            ended much sooner, but Dr. Smith provides medical 
 
            corroboration of the end and medical corroboration is the 
 
            controlling factor.  Pitzer v. Rowley Interstate,   N.W.2d   
 
            No. 290/92-776, (Ia. Ct. App. 1993); Thomas v. William 
 
            Knudson & Sons, Inc., 349 N.W.2d 124 (Iowa App. 1984);  
 
            Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 
 
            60, 65 (1981).  It is recognized that the cases cited deal 
 
            with healing period under section 85.34(1), but the 
 
            determination is the same as provided for temporary total 
 
            disability under section 85.33 with the exception of those 
 
            injuries which result in permanent disability of some 
 
            extent.  The temporary total disability entitlement in this 
 
            case is ended by claimant being medically capable of 
 
            returning to substantially similar employment as determined 
 
            by Dr. Smith.  
 
            
 
                 The date of injury in this case is June 27, 1989.  From 
 
            June 28, 1989 through January 19, 1990, is a span of 29 3/7 
 
            weeks.  As established by stipulation of the parties, 
 
            claimant had been paid 28 weeks of compensation at an 
 
            incorrect rate.  He was overpaid by $6.44 based upon 28 
 
            weeks of payments.  In accordance with this ruling he is 
 
            entitled to recover another 1 3/7 weeks of benefits, 
 
            together with interest pursuant to section 85.30.  In making 
 
            payment to claimant, defendants are entitled to offset the 
 
            $6.44 which was overpaid due to making payments at an 
 
            incorrect rate.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 The claimant's burden is to show that the treatment he 
 
            received was reasonable, necessary and proximately caused by 
 
            the injury.  In this case, it is has been determined that 
 
            his recovery from the injury was complete no later than 
 
            January 19, 1990.  It has been further determined that the 
 
            injury produced no permanent disability.  Accordingly, the 
 
            need for further medical care would be very unlikely.  
 
            Accordingly, it is determined that any medical expenses 
 
            incurred by the claimant subsequent to January 19, 1990, 
 
            have not been shown to have been proximately caused by the 
 
            injury.  The evidence indicates that they are more likely a 
 
            result of claimant's drug seeking activities or intervening 
 
            events.  With regard to the few expenses for prescription 
 
            medications which predate January 19, 1990, it is found that 
 
            those are also manifestations of the claimant's drug-seeking 
 
            activities.  Accordingly, he has failed to prove that they 
 
            were reasonable and necessary.  He has likewise failed to 
 
            prove by a preponderance of the evidence that the 
 
            prescriptions were proximately caused by the injury.  
 
            Accordingly, claimant is not entitled to any recovery in 
 
            this case under the provisions of section 85.27.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Daniel M. 
 
            Roberts one and three-sevenths (1 3/7) weeks of compensation 
 
            for temporary total disability at the rate of one hundred 
 
            eighty-six and 40/100 dollars ($186.40) per week payable 
 
            commencing January 10, 1990.  Defendants are entitled to 
 
            credit in the amount of six and 44/100 dollars ($6.44) for 
 
            the overpayment made due to past benefits being paid at an 
 
            incorrect weekly rate.  The remaining unpaid past due 
 
            balance shall be paid to the claimant in a lump sum together 
 
            with interest.
 
            
 
                 It is further ordered that claimant take nothing 
 
            further in the proceeding in the way of medical expenses.
 
            
 
                 It is further ordered that each party pay the costs 
 
            incurred by that party in participating in this proceeding.  
 
            Neither party shall recovery costs from the other.  
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Burns Davison III
 
            Attorney at Law
 
            620 Hubbell Bldg
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Terry Monson
 
            Attorney at Law
 
            100 Court Ave STE 600
 
            Des Moines, Iowa  50309-2231
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                          1401 1402
 
                                          Filed December 14, 1993
 
                                          Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DANIEL M ROBERTS,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 921538
 
            MAY TRUCKING,  
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            TRAVELERS INSURANCE CO., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1401 1402
 
            Claimant's credibility was successfully attacked.  His 
 
            testimony and complaints were held to be unreliable and 
 
            lacking corroboration.  The claim for extended healing 
 
            period and medical expenses acquired over a number of years 
 
            was denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY FREILINGER,             :
 
                                          :      File No. 921556
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            K-MART 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, 1991, in Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on June 
 
            19, 1989.  The record in the proceeding consists of the 
 
            testimony of the claimant, claimant's husband, Lloyd 
 
            Freilinger, and Julie Freimuth.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged disabilities are 
 
            causally connected to her June 19, 1989 injury;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to 85.27 medical 
 
            benefits, the issue being causal connection and 
 
            authorization;
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 50 year old high school graduate who has 
 
            had no other formal education.  She described her prior work 
 
            history before beginning work with defendant in October 
 
            1987.  This prior history included working at Collins Radio 
 
            making plugs, working as a sales clerk at a Sears and K's 
 
            Merchandising store, as a kitchen helper in a school 
 
            cafeteria, and as a hospital laundry aide.
 
            
 
                 Claimant described her position with defendant, 
 
            beginning as a cashier.  She said she had no low back 
 
            problems at that time.
 
            
 
                 On June 19, 1989, claimant was at her cashier's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            position helping a customer who was purchasing five large 
 
            stacked soft textile garbage cans.  As a store policy, 
 
            claimant was required to separate these garbage cans to make 
 
            sure there was nothing hidden in the bottom of the cans.  
 
            Claimant explained the difficult time she was having trying 
 
            to pull and push the cans to separate them as the suction 
 
            pressure was resisting her efforts.  Claimant said she 
 
            suddenly felt a sting in her low back below the belt.  
 
            Claimant testified she told the company personnel but con
 
            tinued to work.  Claimant was then off around the end of 
 
            June and was sent to Charter Hospital as she could not stand 
 
            the pain any longer.  Claimant said she was told to see a 
 
            chiropractor.  Claimant indicated that since she had a 
 
            wedding in Marion, Iowa, to attend, she saw a chiropractor 
 
            while there.  Shortly thereafter, on July 7, 1989, claimant 
 
            and her husband drove to California for a two weeks 
 
            vacation.  Claimant contends her back was "killing her" at 
 
            that time.  Claimant was very confused in her testimony.
 
            
 
                 Defendant sent claimant to Peter D. Wirtz, M.D., who 
 
            claimant contends did her no good.  She related the doctor 
 
            checked her legs and asked her to bend over and she said she 
 
            didn't want to bend over.  The doctor prescribed no medicine 
 
            and took no x-rays.
 
            
 
                 Claimant said she then went to her family doctor, David 
 
            E. Swieskowski, M.D., as she was getting no relief.  He 
 
            recommended a CT scan and referred claimant to Scott C. 
 
            Erwood, M.D., a neurologist who had an MRI taken.  Claimant 
 
            indicated a bulging disc was found.  Claimant described her 
 
            course of treatment which included physical therapy, 
 
            walking, certain exercises and medicine.  Claimant indicated 
 
            on December 12, 1989 Dr. Erwood returned her to work 
 
            cashiering one-half days beginning January 2, 1990.  
 
            Claimant said she got along fine but hurt.
 
            
 
                 Claimant said she then went to Alfredo Socarras, M.D., 
 
            for exam and treatment.  Claimant said that by this time she 
 
            was emotionally frustrated and things were troubling her.
 
            
 
                 Claimant left work again on May 5, 1990, as she 
 
            indicated she incurred another work injury to her arm.  She 
 
            then contended she left work due to her low back problems 
 
            she was having and because of her left arm injury.
 
            
 
                 Dr. Swieskowski then referred claimant to a 
 
            psychologist as the pain was getting her down.  Claimant 
 
            eventually went to a total of three psychologists.  She said 
 
            no medicine was prescribed.  Claimant contends she received 
 
            no relief from her pain.
 
            
 
                 Claimant has not worked since May 5, 1990, and she 
 
            insists she cannot work day in and day out due to the pain 
 
            in her right buttock area.  Claimant said she did not know 
 
            if Dr. Swieskowski returned her to work August 16, 1989 
 
            (Defendant's Exhibit A).  It appears the date of August 16, 
 
            1988 is a mistake and is meant to be 1989.  Claimant never 
 
            saw this doctor for complaints in 1988.
 
            
 
                 Claimant acknowledged that no doctor gave her an 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            impairment rating.
 
            
 
                 On cross-examination, claimant admitted she was in a 
 
            car accident on June 26, 1989, and two days later went to 
 
            the Charter Hospital.  She acknowledged she told Julie 
 
            Freimuth, personnel training manager for defendant, about 
 
            her garbage can incident ten days after it happened.  The 
 
            undersigned notes this would be June 29, 1989, which is 
 
            three days after her car accident.  The undersigned notes in 
 
            claimant's deposition  that claimant's arms were hurting bad 
 
            in her elbows and that it went up into her shoulder (Def. 
 
            Ex. A, p. 28).  It doesn't appear that claimant told any of 
 
            the other doctors about this car accident on June 26, 1989, 
 
            when she related the history to them.
 
            
 
                 Claimant was asked about Claimant's Exhibit 1, page 3, 
 
            and her complaint of June 28, 1989, that she did some 
 
            painting two weeks before and was in all kinds of bending 
 
            positions and her back has been hurting since then.  This 
 
            painting incident would have occurred around June 14, 1989, 
 
            which is five days before claimant's alleged June 19, 1989 
 
            injury at defendant's place of business.  From this record 
 
            of Dr. Swieskowski, it appears claimant did not relate a 
 
            work injury to the doctor until the October 11, 1989 
 
            appointment.  Claimant contends her painting was done on her 
 
            mother-in-law's porch and did not require bending.  Claimant 
 
            seemed surprised as to how this got into her medical record.  
 
            The undersigned can understand claimant's alarm as she 
 
            suppressed this information from her doctors when she could 
 
            and instead blamed her condition on a June 19, 1989 work 
 
            injury.  Claimant said she has not seen a doctor since her 
 
            January 24, 1991 deposition and has no future appointments 
 
            scheduled.  Claimant acknowledged she was never a full time 
 
            employee for defendant and worked 20 to 25 hours a week.  On 
 
            May 5, 1990, claimant gave defendant a two week notice that 
 
            she was going to quit.  The reason was for medical problems 
 
            due to her elbow and back.  Claimant has not worked since.
 
            
 
                 Lloyd Freilinger, claimant's husband, testified that 
 
            claimant's health prior to working for K-Mart was good.  He 
 
            said claimant's condition is a lot better most of the time 
 
            but she has to be very careful.  He indicated claimant may 
 
            go three weeks without problems and then they come again.  
 
            He said that since June 19, 1989 claimant has been having 
 
            trouble getting into the right side of the car and she 
 
            experiences anger and has temperamental changes.  He said he 
 
            and his wife discussed her quitting K-Mart as she doesn't 
 
            have to work, but she wanted to do something.  He was asked 
 
            several questions as to the numerous doctors claimant saw.
 
            
 
                 Julie Freimuth, personnel training manager for 
 
            defendant for the last seven years, has been employed by 
 
            defendant for the last thirteen years total.  She said 
 
            claimant told her of an injury seven to ten days after it 
 
            allegedly occurred and authorized care was then discussed.  
 
            She said K-Mart doesn't authorize chiropractors but did for 
 
            the first time in claimant's case.  Claimant has missed no 
 
            raises and has always been a part-time employee.
 
            
 
                 Ms. Freimuth emphasized that defendant accommodated 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's restrictions.  She said claimant was back to 
 
            normal January 1990, and that there was no problem until 
 
            claimant gave a two week notice due to her arm problem she 
 
            developed and quit in May 1990.
 
            
 
                 Ms. Freimuth said that up to January 5, 1990, she 
 
            periodically checked with claimant as to how she was doing 
 
            and she related claimant never claimed any back problems.  
 
            She related again that claimant gave as her medical reason 
 
            for quitting that her arm was bothering her from an arm 
 
            injury.  She said that claimant was making $4.80 in May 
 
            1990.  Her pay today would be $5.00 to $5.30 per hour with 
 
            the cost of living increases.
 
            
 
                 Claimant saw T. R. Sherman, D.C., around the end of 
 
            September 1990, and he told her she could return to work on 
 
            September 5, 1989 (Def. Ex. A, p. 48).  She said Dr. Wirtz 
 
            also told her she could return to work on September 5, 1989 
 
            (Def. Ex. A, p. 49).  Claimant described the many things she 
 
            can and cannot do (Def. Ex. a, pp. 58-59).  Claimant said 
 
            she knew of no restrictions given to her by any doctors 
 
            (Def. A, p. 59).  Claimant's Exhibit 2 reflects that she 
 
            sought medical treatment June 28, 1989, for back pain from 
 
            apparently painting two weeks before and that she had been 
 
            hurting since that time.  The undersigned notes that the 
 
            index of the exhibits show that these were Dr.  
 
            Swieskowski's notes and yet later on the medical records 
 
            indicate that Dr. Swieskowski never saw claimant until 
 
            October 1989.  The undersigned cannot tell what doctor noted 
 
            that in the records as reflected in Claimant's Exhibit 2.  
 
            The same notes on October 11, 1989 reflect claimant's 
 
            contention she injured her back at work in June.  These 
 
            notes thereafter beginning on April 11, 1990, show right 
 
            elbow pain was also beginning.
 
            
 
                 Mercy Medical Clinic notes of July 24, 1989 reflect 
 
            claimant's low back complaints occurring approximately one 
 
            month earlier which she attributes to the garbage can 
 
            incident at work.  She mentioned nothing about her painting 
 
            which she originally claimed occurred on June 14, 1989, 
 
            approximately one month earlier (Cl. Ex. 4).
 
            
 
                 Claimant's Exhibit 7 reflects Dr. Wirtz's diagnosis was 
 
            "resolved low back pain, muscular."  Claimant was given a 
 
            return-to-work slip for September 5, 1989 at this time.  
 
            Again, claimant never mentioned her painting episode or 
 
            automobile accident so this doctor never had the benefit of 
 
            a true injury history of claimant.
 
            
 
                 Dr. Sherman gave claimant a return-to-work slip on 
 
            September 1, 1989, for a September 11, 1989 return to work 
 
            (Cl. Ex. 8).
 
            
 
                 Claimant's Exhibit 10 MRI reflects claimant had an L5-
 
            S1 evidence of disc degeneration disease.
 
            
 
                 Dr. Erwood, a neurosurgeon, indicated claimant's MRI 
 
            showed the above did not appear to compress the nerve root 
 
            and did not think this was a surgical lesion.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 On January 8, 1990, Dr. Socarras, a neurologist, 
 
            examined claimant and concluded she had a degenerative disc 
 
            disease at L5-S1 interspace with asymmetric noncompressive 
 
            protrusion on the right.  He detected no neurological 
 
            deficit or signs of radicular involvement at that time and 
 
            gave her some restrictions (Cl. Ex. 19, pp. 30-33).  On 
 
            April 23, 1990, it appears claimant was having increased 
 
            elbow problems and was given "no heavy lifting restrictions" 
 
            and return to light duty April 24, 1990. (Cl. Ex. 20-22)
 
            
 
                 On July 10, 1990, a licensed psychologist, Allen F. 
 
            Demorest, M.A., through referral from Dr. Swieskowski for a 
 
            pain center evaluation, wrote the claimant does have some 
 
            adjustment disorder and noted with interest that claimant 
 
            wasn't having back problems, but was having arm pain from 
 
            her tendonitis and that resulted in her decision to quit 
 
            work.  His treatment plan suggested she be seen for 
 
            psychiatric evaluation and MMPI (Cl. Ex. 23).  The 
 
            undersigned notes that claimant gave an incomplete medical 
 
            and injury history to this doctor, also.
 
            
 
                 Claimant's Exhibit 29 is obviously originated to show a 
 
            causal connection of claimant's complaint to claimant's June 
 
            19, 1989 alleged work injury.  The doctor indicated it was 
 
            difficult for him to comment on this but he did anyway.
 
            
 
                 Dr. Swieskowski said he didn't see claimant until 
 
            October 1989.  The first entry in Claimant's Exhibit 2 is a 
 
            June 20, 1989 note.  It is obvious that if Dr. Swieskowski's 
 
            August 28, 1990 letter (Cl. Ex. 29) is to be taken as 
 
            correct, then Claimant's Exhibit 2 is not Dr. Swieskowski's 
 
            notes, as reflected in the claimant's index to exhibits, at 
 
            least in total.  Claimant's Exhibit 29 further shows that 
 
            Dr. Swieskowski did not know that claimant injured her back 
 
            while painting on June 14, 1989, or that she was in an 
 
            automobile accident in June 1989 and, therefore, the doctor 
 
            did not have a correct and honest medical history of 
 
            claimant when he was struggling to write his letter 
 
            requesting a causal connection.
 
            
 
                 Claimant's Exhibit 30 is of interest.  This reaffirms 
 
            the consistent action of claimant in not disclosing the 
 
            entire injury and medical history and also shows her actions 
 
            which add confusion to her contentions.
 
            
 
                 The undersigned is disturbed by the consistent failure 
 
            of the claimant to relate her medical injury history to her 
 
            treating or examining doctors.  The only causal connection 
 
            in the evidence is Dr. Swieskowski's August 28, 1990 letter 
 
            (Cl. Ex. 29).  As indicated earlier, it is apparent he had 
 
            problems concluding a causal connection and did so 
 
            reluctantly.  It is also obvious he did not have all the 
 
            medical history of claimant.
 
            
 
                 There is insufficient evidence that claimant incurred 
 
            any permanent injury or any permanent impairment.  Although 
 
            permanent impairment is not necessary to determine an 
 
            industrial disability, the claimant has failed in her burden 
 
            of proof to show that a June 19, 1989 injury was the 
 
            proximate cause of her current alleged disabilities and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            medical condition.
 
            
 
                 The parties stipulated to an injury that arose out of 
 
            and in the course of claimant's employment on June 19, 1989.  
 
            The undersigned finds that on June 19, 1989, claimant did 
 
            receive an injury that resulted in claimant being off work 
 
            on June 30, 1989 to and including July 7, 1989, and August 
 
            19, 1989 to and including September 4, 1989, amounting to 
 
            3.571 weeks.
 
            
 
                 Claimant has the burden of proof to show causal 
 
            connection between her alleged injury and her alleged 
 
            disability and medical condition.  The undersigned can feel 
 
            sorry for claimant's apparent condition.  Likewise, sympathy 
 
            is not the rule of law.
 
            
 
                 As to the 85.27 issue concerning medical benefits, the 
 
            undersigned finds that the medical bills that are in 
 
            question and are represented by claimant's exhibit 32 were 
 
            not causally connected to claimant's June 19, 1989 injury.  
 
            Additionally, they were not authorized.
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 19, 
 
            1989 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 
 
            N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work-related temporary total 
 
            disability on June 19, 1989 which contributed to claimant 
 
            being off work June 30, 1989 to and including July 7, 1989, 
 
            and August 19, 1989 to and including September 4, 1989, 
 
            amounting to 3.571 weeks.
 
            
 
                 Claimant incurred a nonwork injury on June 14, 1989, 
 
            resulting from painting her mother-in-law's porch, which 
 
            injury substantially and materially contributed to and 
 
            aggravated claimant's L5-1 degenerative disc disease.
 
            
 
                 Claimant has no permanent partial impairment or 
 
            disability as a result of a June 19, 1989 work injury.
 
            
 
                 Defendant is not responsible for claimant's medical 
 
            bills as represented by claimant's exhibit 32, as there was 
 
            no authorization and there is insufficient evidence to show 
 
            that they are the result of a June 19, 1989 work injury 
 
            versus a June 14, 1989 nonwork injury.
 
            
 
                 Claimant was not credible in relating her complete 
 
            material medical and injury history to her treating and/or 
 
            examining doctors.
 
            
 
                           
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to three point five seven one 
 
            (3.571) weeks of temporary total disability benefits for the 
 
            period beginning June 30, 1989 to and including July 7, 
 
            1989, and August 19, 1989 to and including September 4, 
 
            1989.  The stipulated rate of eighty-three dollars ($83.00) 
 
            per week is not correct.  There is no such rate for a June 
 
            19, 1989 date with two exemptions.  The parties did not set 
 
            out a gross wage.  The rate shall be eighty-three and 15/100 
 
            dollars ($83.15).  Defendants shall receive credit for 
 
            amounts paid.   The parties stipulated that defendant has 
 
            already paid and shall receive credit for three point fifty-
 
            seven (3.571) weeks at the rate of eighty-four and 61/100 
 
            dollars ($84.61).
 
            
 
                 That claimant shall take nothing further from these 
 
            proceedings.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            1913 Ingersoll
 
            Des Moines IA 50309-3320
 
            
 
            Mr Joel T S Greer
 
            Attorney at Law
 
            112 West Church St
 
            Marshalltown IA 50158
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.40; 5-1402.20
 
                      Filed May 13, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY FREILINGER,             :
 
                                          :      File No. 921556
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            K-MART CORPORATION,           :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured             :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1402.20; 5-1402.40
 
            Claimant failed to carry her burden to show that her medical 
 
            condition and alleged permanent disability was caused by her 
 
            June 19, 1989 alleged injury.
 
            Claimant was allowed nothing further from these proceedings 
 
            except to 3.571 weeks of temporary total disability to which 
 
            the parties had stipulated.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ESTATE OF LARRY C. SMIZER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 921767
 
            D. BURSON TRUCKING, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            HARTFORD INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            estate of Larry C. Smizer, against his employer, D. Burson 
 
            Trucking, and its insurance carrier, Hartford Insurance 
 
            Company, to recover permanent partial disability benefits 
 
            under the Iowa Workers' Compensation Act, as a result of an 
 
            injury sustained on June 26, 1989.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Sioux City, Iowa, on July 29, 1993.  A first 
 
            report of injury has been filed.  The record consists of the 
 
            testimony of Dennis Derr, R.N. and of joint exhibits 1 
 
            through 30.  Both parties filed briefs subsequent to 
 
            hearing.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            stipulated to the following:
 
            
 
                 (1)  An employer-employee relationship existed between 
 
            decedent and D. Burson Trucking on the date of injury;
 
            
 
                 (2)  Decedent did receive an injury which arose out of 
 
            and in the course of decedent's employment on January 26, 
 
            1989;
 
            
 
                 (3)  Decedent's injury caused a period of healing 
 
            period disability for which decedent was paid all benefits 
 
            to which decedent was entitled;
 
            
 
                 (4)  The commencement date for any permanent partial 
 
            disability benefits due decedent is February 15, 1990;
 
            
 
                 (5)  Decedent's June 26, 1989 injury did produce 
 
            permanent partial disability;
 
            
 
                 (6)  Decedent was single and entitled to three 
 
            exemptions on the date of injury;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 (7)  Entitlement to payment of medical costs under 
 
            section 85.27 is no longer disputed; and
 
            
 
                 (8)  Defendants are entitled to credit for 48 weeks and 
 
            two days of benefits paid at the rate of $295.03.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 (1)  The extent of any permanent partial disability 
 
            benefits due decedent to the date of his death; and
 
            
 
                 (2)  The appropriate rate of weekly compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 The employee, Larry C. Smizer, was born on August 26, 
 
            1941.  He died on May 28, 1992, in an alcohol-related motor 
 
            vehicle accident.  That accident did not arise out of and in 
 
            the course of his employment.  Mr. Smizer did have a motor 
 
            vehicle accident arising out of and in the course of his 
 
            employment on June 26, 1989 when a semi-tractor trailer that 
 
            he was operating jackknifed and hit another vehicle.  
 
            Employee Smizer initially was treated at an emergency room 
 
            for abrasions and bruises on the lower extremities and then 
 
            released.  On approximately June 30, 1989, Mr. Smizer saw a 
 
            physician's assistant with complaints of back pain.  When 
 
            these did not resolve, Mr. Smizer was referred to John J. 
 
            Dougherty, M.D., an orthopedic surgeon.  
 
            
 
                 On September 6, 1989, Dr. Dougherty diagnosed 
 
            claimant's condition as a lumbosacral sprain superimposed 
 
            over degenerative discs at L4/L5 and L5/S1.  Evidence of 
 
            early degenerative arthritis was also present.  A subsequent 
 
            MRI revealed a central bulging disc at the L4/L5 space.  Dr. 
 
            Dougherty recommended that claimant use a back support, take 
 
            prescribed anti-inflammatories, engage in an exercise 
 
            program, and continue physical therapy with intermittent 
 
            traction.  
 
            
 
                 On November 14, 1989, claimant saw Leonel H. Herrera, 
 
            M.D., of Back Care, Inc.  Dr. Herrera's impression was of 
 
            myoligamentous injury.  Dr. Herrera suspected that Mr. 
 
            Smizer had healed well although he had remaining significant 
 
            weakness and chronic deconditioning syndrome as a result of 
 
            his inactivity.  Dr. Herrera recommend an isokinetic, 
 
            monitored rehabilitation program with participation three 
 
            times per week.  On January 16, 1990, Dr. Herrera opined 
 
            that Mr. Smizer was at maximum medical improvement and 
 
            opined the employee could return to work without risk of 
 
            reinjury.  Dr. Herrera stated that Mr. Smizer could return 
 
            to truck driving shorter distances although he may not wish 
 
            to drive long hauls.  
 
            
 
                 On January 8, 1990, Dr. Dougherty returned Mr. Smizer 
 
            to work without restrictions.  On January 26, 1990, Dr. 
 
            Dougherty stated that perhaps claimant should be limited 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            from excessive bending, twisting or lifting.  On February 
 
            26, 1990, Dr. Dougherty assigned claimant a permanent 
 
            partial impairment rating of 3 percent of the body as a 
 
            whole.  
 
            
 
                 The record reflects that claimant had dorsal back pain 
 
            in 1962.  There is no other evidence of back pain prior to 
 
            the date of the work injury.  
 
            
 
                 Dennis E. Derr, R.N., vocational rehabilitation 
 
            specialist, worked with Mr. Smizer in Fall 1989.  Mr. Derr 
 
            ended his work with Mr. Smizer in early Spring 1990, when 
 
            Mr. Smizer indicated that he did not need vocational 
 
            rehabilitation assistance and that he had had job offers for 
 
            seasonal work as a gravel truck driver and as a ready-mix 
 
            driver.  At hearing, Mr. Derr opined that driving dump and 
 
            gravel trucks on county roads would likely be rougher and 
 
            more jarring driving than driving over-the-road for a 
 
            semi-trailer operation.  He acknowledged, however, that dump 
 
            and gravel hauling would likely be done within a 50 mile 
 
            radius.  Mr. Smizer's regular haul for Burson Trucking had 
 
            been from Omaha to New Orleans and back.  It had involved 
 
            occasional loading and unloading.  
 
            
 
                 In his deposition, Mr. Smizer had expressed concern 
 
            about doing longhaul trucking after his injury.  Mr. 
 
            Smizer's concerns are consistent with the statements of Dr. 
 
            Herrera in January 1990.  Mr. Smizer was a high school 
 
            graduate who had spent two years in the army reaching the 
 
            rank of Enlisted Personnel 4.  Prior to beginning work with 
 
            Burson Trucking, he had worked as a farmer, a farmhand, and 
 
            as a gravel hauler.  Mr. Smizer owned about three acres of 
 
            land in a small village.  He kept some sheep and cattle on 
 
            the acreage.  Subsequent to his injury, he had moved a house 
 
            onto the acreage.  Mr. Smizer, in his deposition, reported 
 
            that he hired work done on the home and that his two 
 
            teen-age sons who resided with him tended the sheep and 
 
            cattle.  Nothing in the record suggests that Mr. Smizer was 
 
            not truthful in this regard.  At some point, Mr. Smizer had 
 
            apparently approached another Burson employee and discussed 
 
            the possibility of the two of them entering a joint venture 
 
            in livestock buying and selling.  This venture apparently 
 
            never came to fruition.  The evidence in the record is 
 
            insufficient to suggest that Mr. Smizer had either the 
 
            experience, intellectual acumen, or financial capabilities 
 
            necessary to engage in such a business successfully.  
 
            
 
                 Before beginning work with Burson Trucking, apparently 
 
            in 1988, Mr. Smizer had earned $4.35 per hour or less doing 
 
            seasonal work in either farming or gravel hauling.  Mr. 
 
            Smizer had annual earnings of $21,778.52 with Burson in 
 
            1988; he had annual earnings of $10,474.74 with Burson 
 
            through June 26, 1989.  Mr. Smizer earned $12,151.90 in 1990 
 
            as a seasonal gravel hauler.  Mr. Smizer earned $7,347.36 as 
 
            a ready-mix hauler in 1991 and $644.60 as a gravel hauler in 
 
            1991.  
 
            
 
                 Mr. Smizer was off work and did not receive pay for 
 
            work during the week of April 29, 1989.  Mr. Smizer was off 
 
            work and did receive vacation pay of $450 during the week of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            June 17, 1989.  The week of April 29, 1989, is a 
 
            nonrepresentative week for rate purposes.  It cannot 
 
            properly be considered in calculating 13 weeks worked 
 
            immediately preceding the injury date.  The vacation pay of 
 
            $450 received for the week of June 17, 1989, is a 
 
            representative amount of pay and can properly be considered 
 
            in seeking representative weeks for rate purposes.  Decedent 
 
            Smizer's rate, therefore, must be calculated using the weeks 
 
            of June 24, 1989, June 17, 1989, June 10, 1989, June 3, 
 
            1989, May 27, 1989, May 20, 1989, May 13, 1989, May 6, 1989, 
 
            April 22, 1989, May 15, 1989, April 8, 1989, April 1, 1989, 
 
            and May 25, 1989.  Mr. Smizer had total gross earning of 
 
            $6,193.08 for those quoted 13 weeks.  The included 13 weeks 
 
            are properly divided by 13 and not 14 as the excluded week 
 
            cannot be properly considered.  When the included 13 weeks 
 
            are divided by 13, Mr. Smizer had average weekly earnings of 
 
            $476.39.  As a single person entitled to three exemptions 
 
            Mr. Smizer's rate of compensation then was $295.03.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We consider the question of entitlement to industrial 
 
            disability.  
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Employee Smizer had a very limited permanent partial 
 
            impairment on account of his injury.  Whether he had serious 
 
            limitations regarding twisting, bending, and lifting is 
 
            questionable.  Some limitations regarding those activities 
 
            would not be inconsistent with a low back strain 
 
            superimposed on generative disc disease, however.  The 
 
            employee elected to not attempt longhaul driving after his 
 
            work injury.  That election was consistent with the opinion 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of Dr. Herrera and, therefore, represents a reasonable job 
 
            market restriction.  The employee did return to work after 
 
            the injury albeit not with the employer and not in a 
 
            longhaul driving job.  He returned to work which was 
 
            consistent with his prior experience and capabilities, 
 
            namely, local, shorthaul driving.  The shorthaul driving was 
 
            seasonal work.  While a question was raised as to whether 
 
            the employee voluntarily elected to do only seasonal work, 
 
            it is not inconsistent with the types of shorter haul 
 
            driving jobs available in communities such as that where the 
 
            employee resided that those jobs primarily be seasonal work.  
 
            The record reflects that claimant's greatest earnings were 
 
            in longhaul driving.  While it cannot be fully established 
 
            that claimant's injury absolutely precluded his doing any 
 
            longhaul driving, the record does demonstrate that longhaul 
 
            driving would have been more difficult subsequent to the 
 
            injury and perhaps would have required modifications such 
 
            that the employee would have been precluded from a number of 
 
            longhaul driving jobs.  The employee had limited 
 
            transferable work skills outside of farming and driving.  
 
            The record, overall, does not establish that the employee 
 
            was a serious candidate for retraining.  When all facts are 
 
            considered, it is found that the employee's injury produced 
 
            a loss of earnings capacity equalling an industrial 
 
            disability of 10 percent of the body as a whole.  
 
            
 
                 The commencement date for permanent partial disability 
 
            benefits is February 15, 1990.  A 10 percent permanent 
 
            partial disability rating equals 50 weeks of benefits due.  
 
            The employee died on May 28, 1992.  Hence, all permanent 
 
            partial disability benefits due the employee had accrued 
 
            prior to his death.  The employee's estate is entitled to 
 
            payment of the total amount of benefits due.  
 
            
 
                 We consider the rate question.  
 
            
 
                 The basis of computation shall be the weekly earnings 
 
            of the injured employee at the time of the injury.  Where an 
 
            employee is paid by the employee's output, weekly earnings 
 
            are computed by dividing by 13 the earnings, not including 
 
            overtime or premium pay, of the employee earned in the 
 
            employ of the employer in the last completed period of 13 
 
            consecutive calendar weeks immediately preceding the injury.  
 
            Section 85.36(6).  
 
            
 
                 Nonrepresentative weeks are not included in the 13 
 
            consecutive weeks.  Short weeks are skipped and additional 
 
            weeks are included until 13 completed consecutive weeks are 
 
            accumulated for the calculation.  Iowa Workers' Compensation 
 
            Law, Lawyer and Higgs, section 12-4.  
 
            
 
                 Defendants' argument that the total should be divided 
 
            by the total number of weeks from the injury, that is, 
 
            including the skipped weeks in the dividing number even 
 
            though earnings in those weeks were excluded is novel.  It 
 
            is also inconsistent with the law.  Claimant's weekly rate 
 
            of compensation is $295.03 as set forth in the above 
 
            findings of fact.  
 
            
 
                                      ORDER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay the estate of Larry C. Smizer permanent 
 
            partial disability benefits for fifty (50) weeks at the rate 
 
            of two hundred ninety-five and 03/100 dollars ($295.03) with 
 
            those payments to commence on February 15, 1990.  
 
            
 
                 Defendants pay all accrued amounts in a lump sum and 
 
            defendants pay interest pursuant to section 85.30.  
 
            Defendants receive credit for permanent partial disability 
 
            benefits previously paid.  
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file status reports as required by agency 
 
            rule.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Joe Cosgrove
 
            Attorney at Law
 
            400 Frances Bldg.
 
            Sioux City, IA  51101
 
            
 
            Mr. M. James Daley
 
            Attorney at Law
 
            1109 Badgerow Bldg.
 
            P.O. Box 1828
 
            Sioux City, IA  51102
 
            
 
            
 
 
            
 
          
 
            
 
            
 
            
 
                                            5-1803
 
                                            Filed September 9, 1993
 
                                            Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ESTATE OF LARRY C. SMIZER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 921767
 
            D. BURSON TRUCKING, 
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            HARTFORD INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Defendants ordered to pay accrued benefits equal to an 
 
            industrial disability of 10 percent to the estate of injured 
 
            worker.  The worker had a mild permanent partial impairment 
 
            on account of a low back strain with degenerative disc 
 
            disease.  He was able to return to work previously done as a 
 
            shorthaul driver.  His work with the employer had been 
 
            longhaul semi-trailer driving.  It appeared he would have 
 
            had difficulty returning to that work.  The employee's date 
 
            of death was subsequent to the date on which all permanent 
 
            partial disability benefits would have accrued.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ISAAC PLEDGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 921842
 
         A. D. HOLST ROOFING CO.,
 
                                         A R B I T R A T I 0 N
 
               Employer,
 
                                         D E C I S I 0 N
 
         and
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Isaac Pledge, 
 
         claimant, against A. D. Holst Roofing Company, employer 
 
         (hereinafter referred to as Holst), and Liberty Mutual Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged injury on June 5, 1989.  On 
 
         August 20, 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 contested 
 
         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 offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On June 5, 1989, claimant received an injury which arose 
 
         out of and in the course of employment with Holst.
 
         
 
              2. Claimant is entitled to temporary total disability or 
 
         healing period benefits only from June 61 1989 through August 4, 
 
         1989 and claimant has been paid these benefits.
 
         
 
         
 
         
 
         PLEDGE V. A. D. HOLST ROOFING CO.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is a scheduled member 
 
         disability to the upper extremity.
 
         
 
              4. Claimant's rate of weekly compensation as result of this 
 
         injury shall be $94.96.
 
         
 
              5. All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to 
 
         permanent disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              The work injury herein involves second and third degree 
 
         burns to the left forearm.  These injuries occurred as a result 
 
         of a burn from hot tar while claimant was working for the 
 
         defendant roofing company.  Claimant was treated by only one 
 
         physician, William Eversman, M.D.  After healing of the burn 
 
         reached maximum improvement, the burns left a six inch by five 
 
         inch scar at the top of the left forearm.  The scar is quite 
 
         thick.
 
         
 
              As a result of the work injury of June 5, 1989, claimant has 
 
         suffered a 10 percent permanent partial impairment to the upper 
 
         extremity.  Claimant's uncontroverted testimony establishes that 
 
         he experiences pain and loss of sensation especially when the 
 
         left forearm is exposed to extremes of cold and heat.  The scar 
 
         cannot be exposed to direct sunlight.  Claimant has limited his 
 
         physical activities because the scar hurts when it is struck.  
 
         Although Dr. Eversman stated in his last report that he could not 
 
         assign an impairment to the arm, he also stated that the arm is 
 
         "not the way it was" and that claimant will have to modify his 
 
         use of the arm in physical activity.        He also stated that 
 
         claimant will continue to experience pain  and symptoms from the 
 
         scarring for the rest of his life.  Dr. Eversman stated that 
 
         claimant must take particular care to avoid sunlight due to the 
 
         risk of injury to the healed burn.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         PLEDGE V. A. D. HOLST ROOFING CO.
 
         Page 3
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.     Permanent partial disabilities are 
 
         classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability.   
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960) ; Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
         
 
              In the case sub judice, the treating physician failed to 
 
         assign an impairment rating.  However, this was not fatal to the 
 
         claimant's case for establishing a loss of use.  This agency is 
 
         aware of various guidelines such as those published by the AMA 
 
         which is recognized in our agency rules that provide the means to 
 
         rate loss of use due to pain, loss of sensation and avoidance of 
 
         use due to environmental conditions.  From the evidence 
 
         presented, it is found that claimant has suffered a 10 percent 
 
         permanent partial loss of use to his arm.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 25 weeks of 
 
         permanent partial disability under Iowa Code section 85. 34 (2) 
 
         (m) which is 10 percent of 250 weeks, the maximum allowable for 
 
         an injury to the arm in that subsection.  Given the stipulation 
 
         as to the extent of the healing period, these permanent 
 
         disability benefits will begin on August 5, 1989.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant twenty-five (25) weeks 
 
         of permanent partial disability benefits at the rate of 
 
         ninety-four and 96/100 dollars ($94.96) per week from August 5, 
 
         1989.
 
         
 
              2. Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PLEDGE V. A. D. HOLST ROOFING CO.
 
         Page 4
 
         
 
         
 
              4. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343 IAC 4.33, including 
 
         reimbursement to claimant for any filing fee paid in this matter.
 
         
 
              5. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this 6th day of December, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert F. Wilson
 
         Attorney at Law
 
         810 Dows Bldg
 
         Cedar Rapids  IA  52401
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd St
 
         Davenport IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803
 
                                         Filed December 6, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ISAAC PLEDGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                          File No. 921842
 
         A.D. HOLST ROOFING CO.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
         
 
              Although the treating physician stated that he could not 
 
         assign a permanent partial impairment rating to the injury, it 
 
         was found from claimant's testimony and the doctor's statements 
 
         as to claimant's loss of use that the claimant suffered a 10 
 
         percent permanent partial impairment to the arm as a result of 
 
         the scarring from second and third degree burns to the upper arm.