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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES A. MOORE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921848
 
            CRAMER AND ASSOCIATES, INC.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on November 7, 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 15, 1989.  The record in the proceedings 
 
            consists of the testimony of the claimant, and claimant's 
 
            exhibits 1 through 9; and defendants' exhibits A through F.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's temporary and permanent 
 
            disability is causally connected to his injury of June 15, 
 
            1989;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 3.  Whether claimant is entitled to 85.27 medical 
 
            benefits, the specific issue being authorization and causal 
 
            connection; and,
 
            
 
                 4.  Whether claimant is entitled to an 85.39 medical 
 
            examination to be paid for by the defendants.
 
            
 
                     
 
            
 
            
 
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            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 31-year-old high school graduate.  
 
            Claimant described his work history prior to beginning 
 
            working for defendant employer in March 1989, as a general 
 
            laborer.  Claimant's prior work history involved farming, 
 
            caring for cattle, military service, mechanic, stained glass 
 
            installer, and concrete construction.
 
            
 
                 Claimant described his duties with defendant employer 
 
            which basically involved bridge building, sandblasting, 
 
            building forms and culverts and use of a 30 to 60 pound 
 
            jackhammer.
 
            
 
                 Claimant worked for defendant employer from March 1989 
 
            to June 15, 1989.  Claimant said he incurred no injuries 
 
            outside of work.  He related a May 1989 tractor accident but 
 
            incurred no injury.  He emphasized that he saw no doctor for 
 
            his back prior to the June 15, 1989 injury.
 
            
 
                 Claimant described how strenuous it is to work with a 
 
            60 pound jackhammer and the effects the three weeks, 40 
 
            hours per day use and vibrations affected his body up to 
 
            June 15, 1989.
 
            
 
                 Claimant said that today he has pain in his mid-back 
 
            and down into his groin area.  He related he felt like he 
 
            has been beaten up.  Claimant said he cannot bend over and 
 
            tie his shoes.
 
            
 
                 Claimant described the jobs he can no longer do which 
 
            basically are all his former jobs.  He also indicated he 
 
            cannot restore or customize old cars as he did before his 
 
            June 1989 injury.
 
            
 
                 Claimant decided to see John R. Walker, M.D., after 
 
            having seen Joshua D. Kimmelman, D.O., for several months.  
 
            Claimant wants to see a chiropractor and wants defendant 
 
            employer ordered to pay for the expense.  If this is not 
 
            successful, claimant wants surgery.  He said Dr. Walker 
 
            charged $400 for his examination which he wants paid under 
 
            Iowa Code section 85.39.
 
            
 
                 Claimant is currently enrolled in a high tech program 
 
            at DMACC, having begun May of 1991 and to conclude in August 
 
            of 1992.  Upon claimant's graduation, he will be certified 
 
            to pull and replace circuit boards.  He has a 3.574 grade 
 
            average for the three semesters he has attended so far.
 
            
 
                 Claimant said he is receiving a Pell grant for school 
 
            and also borrowed $1,200 from the bank.  He does not know 
 
            what to expect as a salary after he graduates.  He has never 
 
            had any prior computer experience.  He indicated that not 
 
            all of the last graduation class have found jobs.
 
            
 
                 On cross-examination, claimant acknowledged he has 
 
            lived at his current address since May of 1988 with his 
 

 
            
 
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            mother and one child.  He lives on ten acres of land.  He 
 
            has seven acres of hay ground and three calves.  He 
 
            indicated he owns an old John Deere tractor, square baler, a 
 
            plow, a disk and steel hayracks.  Claimant said he mows and 
 
            rakes the hay but does not lift it.  His brothers help him 
 
            with the lifting.
 
            
 
                 Claimant testified as to his medical treatment.  He 
 
            acknowledged he saw Dr. Walker only once per referral from 
 
            his lawyer.
 
            
 
                 Joshua Kimelman, D.O., testified by way of deposition 
 
            on October 16, 1991.  He first saw claimant on November 15, 
 
            1989.  His associate, Dr. Kenny, saw claimant on October 31, 
 
            1989.  Dr. Kimelman's first diagnosis was a degenerative 
 
            disc disease, lumbar area.  He related claimant's final 
 
            diagnosis of degenerative disc disease with congenital 
 
            spinal stenosis which he said was in part caused by 
 
            claimant's June 15, 1989 injury.
 
            
 
                 Dr. Kimelman opined claimant has a 10 percent 
 
            impairment with 5 percent of this related to his June 1989 
 
            injury.
 
            
 
                 Dr. Kimelman disagreed with Dr. Walker's recommendation 
 
            of hospitalization and traction, a myelogram, disc surgery 
 
            (Def. Ex. A, pp. 10-16).  He explained why he was not 
 
            performing surgery on claimant.  Dr. Kimelman related the 
 
            restrictions he put on claimant, i.e., avoid bending, 
 
            twisting and lifting (Def. Ex. A, p. 18).  He said people 
 
            like claimant would have fewer disc herniations if they were 
 
            not twisting, bending and lifting every day (Def. Ex. A, p. 
 
            17).  He did not recommend that claimant see a chiropractor 
 
            when claimant requested the doctor's opinion as to this 
 
            (Def. Ex. A, p. 19).  He did say that if claimant wanted to 
 
            accept the risk of future damage that might occur, he would 
 
            not accept the responsibility of claimant seeing a 
 
            chiropractor.  Dr. Kimelman said there was no change in 
 
            claimant's condition between claimant's visit to him in 
 
            November 1990 until the time he saw claimant in February 
 
            1991 (Def. Ex. A, p. 20).  He said claimant had no objective 
 
            nerve damage (Def. Ex. a, p. 25).  The doctor recommended 
 
            claimant not go to the type of employment that requires 
 
            heavy exertion such as running a jackhammer, skid loader, 
 
            shoveling sand, sandblasting, and construction work in 
 
            general.  He agreed with the lifting restrictions found in 
 
            the functional capacity test.  The doctor did not specify 
 
            any weight limit (Def. Ex. A, p. 35).
 
            
 
                 The doctor emphasized he cannot predict claimant's 
 
            future and does not necessarily expect claimant's L2-3 or 
 
            L5-S1 disc to herniate.  He said claimant will not need 
 
            surgery.  He emphasized again that most people with disc 
 
            herniations do not need operations and have a fairly benign 
 
            course over the long term (Def. Ex. A, p. 37).
 
            
 
                 The doctor said claimant reached maximum healing 
 
            benefits on February 28, 1990 (Def. Ex. A, pp. 38-39).  In 
 
            his notes of February 28, 1990 (Def. Ex. E, p. 37), he also 
 
            wrote that claimant is not going to be able to return to 
 

 
            
 
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            construction work secondary to his degenerative disc disease 
 
            and congenitally small or narrow spinal canal.  He opined 
 
            claimant has a 10 percent permanency and that 5 percent is 
 
            to the job-related injury itself.
 
            
 
                 Claimant was seen by Dr. Walker on December 10, 1990, 
 
            upon referral by claimant's attorney.  Dr. Walker found a 
 
            disc disruption at L-5 and opined claimant would be a 
 
            surgical candidate in a few months.  Dr. Walker suggested 
 
            things that Dr. Kimelman pointed out earlier that he did not 
 
            recommend or agree with (Def. Ex. A, pp. 10-16).  These 
 
            areas of disagreement will not again be set out herein.  
 
            Although Dr. Walker did not advocate that claimant go to a 
 
            chiropractor, he felt a few trial treatments would not be 
 
            unreasonable (Def. Ex. A, pp. 48-49).
 
            
 
                 Dr. Walker opined claimant had a temporary partial 
 
            impairment of 45 percent of the body as a whole and with 
 
            successful surgery and any other treatment, claimant would 
 
            end up with a permanent partial impairment of the body as a 
 
            whole of 20 percent.  As is often typical of Dr. Walker, he 
 
            indicated claimant's industrial disability as higher, but he 
 
            emphasized he didn't want to invade the province of the 
 
            workers' compensation commissioner.  Of course, Dr. Walker 
 
            is not competent under the law to determine industrial 
 
            disability and his comments usually seen in his reports are 
 
            obviously intended to influence the commissioner.  Again, it 
 
            will not succeed (Def. Ex. A, p. 49).  It is of interest why 
 
            claimant traveled three and one-half hours from the Guthrie 
 
            Center area, 50 miles directly west of Des Moines, to 
 
            Waterloo, which is another approximately 100 miles northeast 
 
            of Des Moines for a one time visit and evaluation.  In 
 
            looking at the report, it is easy to conclude why claimants 
 
            are commonly sent long distances across Iowa to Dr. Walker, 
 
            in Waterloo, Iowa.  As claimant's attorney commented, Dr. 
 
            Walker retired about one year ago (Def. Ex. A, p. 32).  It 
 
            would appear he was doing evaluations only.  Claimant's 
 
            exhibit 7 indicates the payment for his examination was to 
 
            be sent to Dr. Walker's residence.  It is of interest the 
 
            extent of speculation to which Dr. Walker went and even more 
 
            as a nontreating physician (Def. Ex. A, p. 49).
 
            
 
                 Dr. Kelly's July 5, 1989 report shows claimant had a 
 
            bulging disc at L5-S1 but no encroachment (Def. Ex. E, p. 
 
            43).  On page 54 of defendants' exhibit E, there is 
 
            reflected in the Iowa Methodist Low Back Institute's 
 
            assessment that claimant was in a tractor accident shortly 
 
            prior to his June 1989 injury.  It appears taking all the 
 
            facts into consideration and defendants admitting an injury 
 
            arose out of and in the course of claimant's employment on 
 
            June 15, 1989, that this is not significant.  It is of 
 
            interest that this report, like another report, shows a date 
 
            of injury of May 15, 1989, but all parties agree that 
 
            claimant's injury was June 15, 1989.  Claimant's functional 
 
            capacity evaluation dated March 8, 1990, reflects claimant's 
 
            one-time lift from floor to knuckle is 55 pounds placing him 
 
            in a medium work capacity and assumes claimant was to 
 
            receive physical therapy and that this would be successful.  
 
            It was suggested the patient look into another type of work 
 
            which is less physical and to avoid further re-injury of his 
 

 
            
 
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            back.
 
            
 
                 The notes of the rehabilitation specialist on May 10, 
 
            1990, indicates the employer is not receptive to a return-
 
            to-work option (Def. Ex. E, p. 46).  It also reflects that 
 
            claimant's physical capacity is light work and he will be 
 
            unable to work any type of job that requires claimant to 
 
            lift over 20 pounds very often.  Claimant expressed a desire 
 
            to return to work as soon as possible (Def. Ex. E, pp. 46-
 
            48).  Claimant was exploring the possibility of going to 
 
            school and in July 1990, it appears claimant concluded he 
 
            should go to school since a JTPA and a Pell grant was paying 
 
            for his schooling.  It appears to the undersigned that with 
 
            the back condition and restrictions claimant has, this was a 
 
            reasonable option and conclusion on the part of the claimant 
 
            (Def. Ex. E, p. 52).
 
            
 
                 It appears if claimant finds a job in the computer 
 
            repair business, his income range would be $5.50 to $8.65 
 
            per hour according the rehabilitation specialist, which 
 
            would put claimant in a similar income range as he had at 
 
            the time of his injury (Def. Ex. E, p. 63).  It also appears 
 
            that claimant's current lifting restrictions may not meet 
 
            the needs or requirements of a computer repair technician 
 
            (Def. Ex. E, p. 64).
 
            
 
                 Claimant's income from wages in 1989 was $8.543.  In 
 
            1987 and 1988 it was $13,180 and $14,135, respectively.
 
            
 
                 The parties stipulated that claimant incurred an injury 
 
            that arose out of and in the course of his employment, but 
 
            they dispute that this injury is the cause of claimant's 
 
            medical and disability problems.
 
            
 
                 Claimant contends that he is still healing and that his 
 
            healing period should be continually running to the present 
 
            and to continue until he sees a chiropractor and, if not 
 
            successful, until he has surgery.  Defendants contend that 
 
            claimant's healing period ended on February 28, 1990, as 
 
            testified to by Dr. Kimelman.  The undersigned finds that 
 
            claimant did incur an injury that arose out of and in the 
 
            course of his employment on June 15, 1989, and that this 
 
            resulted in claimant incurring a healing period beginning 
 
            June 15, 1989 through February 28, 1990, which involves 37 
 
            weeks.
 
            
 
                 Claimant's treating doctor, Dr. Kimelman, opined 
 
            claimant had a 10 percent impairment to his body as a whole, 
 
            5 percent of which he related to claimant's work injury of 
 
            June 15, 1989.  It appears that Dr. Kimelman feels claimant 
 
            had a 5 percent impairment to his body as a whole that 
 
            preexisted claimant's June 15, 1989 injury, and that this 
 
            preexisting situation was the result of the preexisting 
 
            degenerative disc disease and claimant's congenital small or 
 
            narrow spinal canal.  There is no evidence that claimant was 
 
            suffering from any back injury or problems or that he had 
 
            any problems doing his heavy duty construction work prior to 
 
            June 15, 1989.  Although claimant may have had this preexist
 
            ing condition, it is obvious from the facts that this 
 
            condition was substantially and materially aggravated by 
 

 
            
 
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            claimant's June 15, 1989 work injury.  Defendants take 
 
            claimant as he is.  The fact that he had a small or narrow 
 
            spinal canal which can increase the extent of one's injury 
 
            or permanency if he receives a back injury is a condition 
 
            that the employer accepted when he employed the claimant as 
 
            claimant had no symptoms or obviously did not know he even 
 
            had such an underlying preexisting condition.  The 
 
            undersigned finds that, in fact, the overwhelming medical 
 
            evidence indicates that claimant's 10 percent impairment was 
 
            caused by claimant's June 15, 1989 injury with 5 percent 
 
            being the result of a substantial material aggravation of a 
 
            preexisting condition and with an additional 5 percent 
 
            specifically caused by claimant's June 15, 1989 injury.
 
            
 
                 The medical testimony and evidence unanimously supports 
 
            the fact that claimant is unable to go back to construction 
 
            work.  It also appears that his current restrictions put him 
 
            in a light duty work category and that he is not to twist, 
 
            bend or stoop at any work job and that he should not lift 
 
            more than 20 pounds very frequently.  The vocational 
 
            rehabilitation specialist commented more than once that the 
 
            employer would not entertain a return-to-work option 
 
            regarding claimant.  This is understandable but, likewise, 
 
            shows the extent of claimant's injury and the fact of him 
 
            being foreclosed from doing any construction work, including 
 
            heavy duty work, that he has done most if not all of his 
 
            adult working life.  
 
            
 
                 Claimant is a high school graduate.  Because of his 
 
            medical condition, he has reasonably chosen to return to 
 
            school in a field in which he hopes he will be able to 
 
            obtain a job.  It is of interest that the rehabilitation 
 
            specialist's records reflect that he is questionable as to 
 
            whether claimant's restrictions will enable him to perform 
 
            to the extent necessary in a job in the computer repair 
 
            business unless some concessions are accepted by the 
 
            employer.  At this time, it is speculative as to claimant's 
 
            future.  It would appear that if he got a job in the 
 
            computer field, it could be comparable income-wise as to 
 
            what he was making in his construction work.  That currently 
 
            is speculation.  Claimant is young and because of that 
 
            hopefully he can bounce back to a greater extent than if he 
 
            was considerably older.  The undersigned believes Dr. 
 
            Kimelman's, the treating doctor, analysis and opinions are 
 
            more reasonable and acceptable to the undersigned.  Claimant 
 
            was sent a considerable distance to another town to get an 
 
            evaluation by Dr. Walker.  The undersigned understands why 
 
            claimant traveled that distance.  Dr. Walker's rating are 
 
            substantially higher than Dr. Kimelman's.  Dr. Walker has 
 
            not treated claimant.  Dr. Walker took a one-time shot at 
 
            trying to evaluate the claimant.
 
            
 
                 Taking into consideration the age; education; his pre-
 
            injury and post-injury medical and work history; the extent 
 
            of his impairment; his income prior to his injury and after 
 
            his injury; his inability to engage in employment for which 
 
            he is fitted as a result of his injury; his foreclosure from 
 
            heavy duty work; his restrictions of lifting, bending or 
 
            stooping; and his limitation to infrequent 20 pound lifting 
 

 
            
 
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            restriction; the location and severity of his injury; extent 
 
            of his healing period; his motivation and functional 
 
            impairment; and the fact the employer will not consider the 
 
            option of claimant returning to work, the undersigned finds 
 
            claimant has a substantial loss of earning capacity and that 
 
            claimant has a 30 percent industrial disability.
 
            
 
                 Claimant desires surgery.  The treating physician has 
 
            not recommended surgery.  At this time, it would appear that 
 
            surgery would not be advisable and that the undersigned is 
 
            not ordering defendants to provide surgery for claimant.  It 
 
            is also obvious from this decision that if, in fact, surgery 
 
            is warranted in the future considering the findings of this 
 
            decision, the defendants would live up to their obligation.  
 
            Dr. Walker anticipated that claimant would need surgery 
 
            within a few months of his December 10, 1990 report.  It is 
 
            going on one year and it does not appear that the prediction 
 
            of Dr. Walker is accurate at this time.
 
            
 
                 Claimant desires to see a chiropractor.  Dr. Kimelman 
 
            does not have faith in chiropractors and is fearful that a 
 
            chiropractor might do more harm than good.  Of course, this 
 
            is speculation.  It is not uncommon for a medical doctor to 
 
            feel that chiropractors can do no good.  This is a result of 
 
            a long time professional jealousy.  Dr. Walker felt that it 
 
            would not be unreasonable on a trial basis that claimant see 
 
            a chiropractor.  A chiropractor has its place in the medical 
 
            field.  In any medical procedure, whether it is an M.D., 
 
            D.O. or chiropractor, treatments can have adverse effects 
 
            but the intent is that it will help.  The undersigned 
 
            believes that it is worth giving claimant an opportunity to 
 
            see if a chiropractor can do what an M.D. or D.O. has not 
 
            been able to do up to the present.  There could be good 
 
            results.  The undersigned feels it is worth a try.
 
            
 
                 It is not the intent of the undersigned to give an open 
 
            ticket for the claimant to see a chiropractor.  
 
            Chiropractors do have a tendency for a continuity of 
 
            treatments for prolonged periods of time.  The undersigned 
 
            finds that defendants shall pay for the claimant to see a 
 
            chiropractor and that initially this is limited to ten 
 
            treatments.  Again, within the intent of the decision, if it 
 
            would appear that, in fact, claimant is receiving a 
 
            permanent cure of his condition, the defendants should use 
 
            their good judgment in hoping to reduce the extent and 
 
            effect of claimant's permanency or need for possible future 
 
            surgery.  If it would appear after this limited number of 
 
            treatments that it only temporarily relieves the pain and is 
 
            not reducing the permanency, then defendants shall no longer 
 
            be responsible for paying for chiropractor treatment on the 
 
            conditions as they exist at the time of this hearing.
 
            
 
                 It appears that the 85.27 and 85.39 issues are tied 
 
            together and basically involve the services rendered and the 
 
            billing of Dr. Walker and the costs connected therewith.  
 
            Claimant filed an 85.39 application and the ruling thereon 
 
            placed this application for hearing.  Defendants' authorized 
 
            doctor, Dr. Kimelman, did render an impairment rating.  
 

 
            
 
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            Under the provisions of 85.39, claimant is entitled to have 
 
            an examination by another doctor.  It appears that claimant 
 
            has admitted that at least at the time of the hearing, that 
 
            an injury did occur on June 15, 1989, and did pay some 
 
            benefits which included healing period and some permanency.  
 
            The undersigned finds that defendants shall pay the $558 
 
            that remains unpaid which amounts to $400 to Dr. Walker for 
 
            his examination, $106 for x-rays and $52 for reports he 
 
            needed.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 15, 
 
            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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 

 
            
 
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            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            hea              reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 

 
            
 
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                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such dissatis
 
                 faction to the employer, in writing if requested, 
 
                 following which the employer and the employee may 
 
                 agree to alternate care reasonably suited to treat 
 
                 the injury.  If the employer and employee cannot 
 
                 agree on such alternate care, the commissioner 
 
                 may, upon application and reasonable proofs of the 
 
                 necessity therefor, allow and order other care.  
 
                 In an emergency, the employee may choose the 
 
                 employee's care at the employer's expense, 
 
                 provided the employer or the employer's agent 
 
                 cannot be reached immediately.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury that arose out of and in 
 
            the course of his employment on June 15, 1989, which work 
 
            injury caused claimant to incur a permanent impairment and a 
 
            substantial loss of earning capacity.
 
            
 
                 Claimant's June 15, 1989 work injury caused claimant to 
 
            incur a substantial and material aggravation of a 
 
            preexisting degenerative disc disease and congenital small 
 
            or narrow spinal canal, the effects of which he was not 
 
            suffering prior to his work injury, and which resulted in a 
 
            total of 10 percent impairment to claimant's body as a 
 
            whole.
 
            
 
                 Claimant's June 15, 1989 work injury caused claimant to 
 
            incur restrictions which limit him to employment that would 
 
            require no bending, twisting or stooping; not to lift very 
 
            often 20 pounds or more; and that claimant is limited 
 
            because of his injury from construction work or work in the 
 
            heavy or medium work category.
 
            
 
                 Claimant's June 15, 1989 work injury resulted in 
 
            defendant employer not giving claimant an option to return 
 
            to work.
 
            
 
                 Claimant's work injury caused him to incur a healing 
 
            period beginning June 15, 1989 through February 28, 1990, 
 
            involving 37 weeks, payable at the rate of $280.03 per week.
 
            
 
                 Claimant's June 15, 1989 work injury caused claimant to 
 
            incur a 30 percent industrial disability.
 
            
 
                 Defendants shall pay the bill of Dr. Walker in the 
 
            amount of $400, the $106 x-ray bill, and the $52 report fee.
 
            
 
                 Defendants are not required at this time to pay for any 
 
            surgery that claimant might desire, because of the current 
 
            conclusion of claimant's treating doctor, Dr. Kimelman, who 
 
            has advised against any surgery.
 
            
 
                 Defendants shall pay for the reasonable costs of 
 
            claimant incurring chiropractor bills on the trial basis 
 
            currently not to exceed ten treatments.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred eighty and 03/100 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            dollars ($280.03) per week for the period beginning June 15, 
 
            1989 through February 28, 1990, totaling thirty-seven (37) 
 
            weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the rate of two hundred eighty and 03/100 dollars 
 
            ($280.03) per week, beginning March 1, 1990.
 
            
 
                 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 thirty-seven (37) weeks of healing period at the rate 
 
            of two hundred sixty-nine and 26/100 dollars ($269.26) and 
 
            fifty (50) weeks of permanent partial disability benefits at 
 
            the rate of two hundred sixty-nine and 26/100 dollars 
 
            ($269.26).
 
            
 
                 That defendants shall pay the medical bill of five 
 
            hundred fifty-eight dollars ($558), which encompasses a four 
 
            hundred dollar ($400) bill of Dr. Walker, one hundred six 
 
            dollars ($106) for x-rays, and the fifty-two dollars ($52) 
 
            for a professional report.
 
            
 
                 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 November, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Stephen Lombardi
 
            Attorney at Law
 
            10101 University Ave
 
            Des Moines IA 50325
 
            
 
            Ms Iris Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            P O Box 10434
 
            Des Moines IA 50309
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      5-1108; 1803; 1806;
 
                      5-1802; 2502; 2503;
 
                      2500; 2206
 
                      Filed November 19, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES A. MOORE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921848
 
            CRAMER AND ASSOCIATES, INC.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 1803; 1806
 
            Claimant awarded 30% industrial disability, which was caused 
 
            by claimant's work injury.
 
            Claimant's back-lumbar injury foreclosed him from doing  any 
 
            medium or heavy duty work, which he has done all his adult 
 
            life.  Defendant employer, who builds and repairs bridges, 
 
            etc., would not give claimant the option of returning to 
 
            work.  Claimant has "no bending, twisting or stooping" 
 
            restrictions and no frequent lifting over 20 pounds.  
 
            Claimant is now going to school.
 
            
 
            5-1802
 
            Claimant awarded 37 weeks of healing period and not a 
 
            running healing period until his requested surgery as 
 
            requested by claimant.
 
            
 
            2606
 
            Held claimant's work injury substantially and materially 
 
            aggravated a preexisting condition in addition to causing 
 
            additional impairment.
 
            
 

 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            2502; 2503
 
            Defendants ordered to pay medical bills under 85.39 and 
 
            85.27
 
            
 
            2500
 
            Claimant's surgery request not allowed as claimant's 
 
            evaluator treating doctor did not advise any surgery.  A 
 
            one-time evaluator, Dr. Walker, suggested surgery would be 
 
            needed in the future.
 
            Defendants ordered to pay up to 10 chiropractic treatments 
 
            which claimant can seek to see on a trial basis if he can 
 
            get relief.
 
            
 
 
         
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         STEVEN ALAN HEIDT,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 921851
 
         MISTY HARBOR, LTD.,   
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         UNITED STATES FIDELITY AND      
 
         GUARANTY COMPANY,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         19, 1992 is affirmed and is adopted as the final agency action in 
 
         this case with the following additional analysis:
 
         The second full paragraph appearing on page 14 of the Arbitration 
 
         Decision is amended to read:
 
         Claimant is not permanent and totally disabled; rather, for all 
 
         of the reasons discussed above, the extent of the claimant's 
 
         disability is 45 percent industrial disability to the body as a 
 
         whole.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Fredd J. Haas
 
         Attorney at Law
 
         5001 S.W. Ninth St.
 
         Des Moines, Iowa 50315
 
         
 
         Ms. Iris J. Post
 
         Attorney at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                             9999
 
                                             Filed November 13, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            STEVEN ALAN HEIDT,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 921851
 
            MISTY HARBOR, LTD.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            UNITED STATES FIDELITY AND      
 
            GUARANTY COMPANY,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed May 19, 1992, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN ALAN HEIDT,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 921851
 
                                          :
 
            MISTY HARBOR, LTD.,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration filed by Steven 
 
            Alan Heidt, claimant, against Misty Harbor, Ltd., employer, 
 
            and United States Fidelity and Guaranty Company, insurance 
 
            carrier, defendants, for benefits as a result of an alleged 
 
            injury which occurred on June 9, 1989.  A hearing was held 
 
            on March 24, 1992, at Fort Dodge, Iowa, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Fredd J. Haas.  Defendants were represented 
 
            by Iris J. Post.  The record consists of the testimony of 
 
            Steven Alan Heidt, claimant; Francis W. Heidt, claimant's 
 
            father; Kim Brienzo, claim representative; and, joint 
 
            exhibits 1 through 14, with the exception of exhibit 3 which 
 
            was withdrawn as evidence in this case but does remain with 
 
            the record.  Claimant's attorney submitted an excellent 
 
            prehearing brief.  The deputy ordered a transcript of the 
 
            hearing.  Defendants' attorney submitted an excellent 
 
            post-hearing brief.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether on June 9, 1989, claimant (1) sustained an 
 
            injury to his back and (2) whether claimant sustained an 
 
            injury to his neck, which arose out of and in the course of 
 
            his employment with employer.
 
            
 
                 Whether either injury is the cause of either temporary 
 
            or permanent disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits and, if so, the extent of benefits to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            which he is entitled.
 
            
 
                 A determination of the proper rate of weekly 
 
            compensation to which claimant is entitled.
 
            
 
                 Whether claimant is entitled to medical benefits for 
 
            further surgery or medical procedures as recommended by the 
 
            doctors at the time of this hearing.
 
            
 
                                 findings of fact
 
            
 
                                  injury -- back
 
            
 
                 It is determined that claimant did sustain an injury to 
 
            his back, that is, his lumbosacral spine, on June 9, 1989, 
 
            that arose out of and in the course of his employment with 
 
            employer.
 
            
 
                 Also, keep in mind as you continue to read that it will 
 
            be subsequently determined that claimant did not sustain an 
 
            injury to his neck, left shoulder or left arm on June 9, 
 
            1989, that arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Claimant testified that he started to work for employer 
 
            on March 7, 1989, and worked approximately three months in 
 
            the construction of pontoon boats until the time of his 
 
            injury on June 9, 1989.  Claimant described that his job 
 
            involved heavy lifting and that he felt a burning sensation 
 
            in his left leg while lifting on the date of the injury, 
 
            June 9, 1989.  Claimant testified that he told the foreman 
 
            about the injury and he was instructed to go to the doctor.  
 
            He further testified that the company nurse took him to the 
 
            doctor.  Claimant also contended that he felt a burning 
 
            sensation in his left arm, like he had slept on it 
 
            (transcript, pages 67-70).  There are no plant medical 
 
            records nor are there any other physicians' records of 
 
            medical care for claimant on June 9, 1989.
 
            
 
                 Claimant did see Charles E. Wirtz, M.D., on June 12, 
 
            1989.  Dr. Wirtz said claimant had experienced pain in the 
 
            left leg for 4-5 weeks.  Dr. Wirtz assessed lumbosacral 
 
            radiculitis, prescribed Motrin, and took claimant off work 
 
            and put him on bed rest for three days.  Claimant made no 
 
            complaints of neck, left shoulder or left arm problems at 
 
            the time of this first recorded visit to a physician for 
 
            this injury (exhibit 1, Dr. Wirtz, page 4).  Dr. Wirtz 
 
            referred claimant to Robert J. Weatherwax, M.D., an 
 
            orthopaedic surgeon, who saw claimant on June 20, 1989.
 
            
 
                 Dr. Weatherwax recorded that claimant was a 30-year-old 
 
            male who does heavy lifting at the boat facility and began 
 
            experiencing buttock and leg pain going down the left leg 
 
            about two and one-half weeks ago.  He recorded that hip 
 
            x-rays were normal and lumbosacral spine films were 
 
            unremarkable.  He ordered a CT scan and continued to keep 
 
            claimant off work.  Dr. Weatherwax diagnosed sciatica with 
 
            herniated nucleus pulposis of the lumbosacral spine on the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            left.  He referred claimant to Rodney E. Johnson, M.D., an 
 
            orthopaedic surgeon and his associate, because he was going 
 
            to be absent for two weeks (exhibit 1, Central Iowa 
 
            Orthopaedics, page 1).
 
            
 
                 Dr. Johnson saw claimant on July 6, 1989, for low back 
 
            pain and left leg pain.  He said the patient apparently 
 
            injured himself while working almost five weeks ago.  The CT 
 
            scan demonstrated annular protrusion with herniation on the 
 
            left of midline at L4-5.  Physical examination demonstrated 
 
            flattening of the normal lordotic curve.  Dr. Johnson 
 
            prescribed physical therapy.  Dr. Johnson has chart entries 
 
            on July 13, 1989, July 14, 1989, July 20, 1989, and August 
 
            3, 1989.  Dr. Johnson recorded no history of neck, left 
 
            shoulder or left arm pain.  He referred claimant to his 
 
            associate, William R. Boulden, M.D., an orthopaedic surgeon 
 
            who specialized in low back surgery and who first saw 
 
            claimant on August 17, 1989.
 
            
 
                 Dr. Boulden recorded on that date that claimant was 
 
            seen on referral from Dr. Johnson for low back and left leg 
 
            pain for a work-related injury.  Dr. Boulden stated that the 
 
            CAT scan showed bulging of the disc at L4-L5 but that it was 
 
            not classic for a rupture and, therefore, he ordered an MRI 
 
            and a continuation of stabilization exercises with Thomas A. 
 
            Wheatley, L.P.T. (exhibit 1, Central Iowa Orthopaedics, 
 
            pages 5-8).
 
            
 
                 On September 12, 1989, Dr. Boulden stated:
 
            
 
                 The MRI, in our interpretation, did not show any 
 
                 evidence of any herniated disc or any spinal 
 
                 stenosis.  There was some early narrowing, but the 
 
                 nerve roots seemed to be fully surrounded by fat 
 
                 yet.
 
            
 
                 The degeneration is at the L3-4 and L4-5 disc 
 
                 levels.
 
            
 
            (Exhibit 1, Central Iowa Orthopaedics, page 9)
 
            
 
                 Dr. Boulden ordered a continuation of the stabilization 
 
            exercises (exhibit 1, Central Iowa Orthopaedics, page 9).
 
            
 
                 When claimant continued to have a lot of left leg pain 
 
            on October 3, 1989, and reported that the exercises 
 
            aggravated his left leg pain, Dr. Boulden said he was 
 
            concerned that this early narrowing that he was seeing at 
 
            L4-5 might actually be more symptomatic than it looked like 
 
            on the MRI.  He ordered an epidural steroid injection 
 
            (exhibit 1, Central Iowa Orthopaedics, page 9).  On October 
 
            10, 1989, he said the epidural steroid injection did not 
 
            change his symptoms and in order to isolate the pain better, 
 
            he recommended doing facet blocks and discograms in order to 
 
            delineate better treatment in the future.
 
            
 
                 Facet blocks were performed at the L3-4 and L4-5 spaces 
 
            on October 13, 1989.  On October 30, 1989, Dr. Boulden 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            reported that the facet blocks alleviated claimant's pain 
 
            completely, but it had now come back.  Stabilization 
 
            exercises aggravated his pain.  Dr. Boulden concluded that 
 
            he did not know of anything else from a conservative 
 
            standpoint.  He said that the patient has to decide whether 
 
            he wants to live with the symptoms or to consider surgical 
 
            stabilization.  The doctor said that the pain was coming 
 
            from the facet joints and that a facet fusion, transverse 
 
            process, would give him approximately 80 percent chance of 
 
            decreasing his pain allowing him to become more functional.  
 
            Claimant was to think it over and let him know.  Claimant's 
 
            condition was unchanged on November 14, 1989 (exhibit 1, 
 
            Central Iowa Orthopaedics, pages 9-14).
 
            
 
                 On March 29, 1990, claimant requested a second opinion.  
 
            Dr. Boulden recommended a second facet block to make sure 
 
            the patient was still suffering from the same pathology that 
 
            he previously diagnosed.  A facet block of L3-4 and L4-5 was 
 
            carried out on April 27, 1990.  On April 28, 1990, claimant 
 
            called to say that he was having worsening back pain.  On 
 
            May 8, 1990, Dr. Boulden said that the repeat facet block 
 
            did knock out his pain for two hours and he concluded that 
 
            claimant had mechanical instability with neural compression 
 
            and that he would benefit from surgery (exhibit 1, Central 
 
            Iowa Orthopaedics, pages 15-20).
 
            
 
                 At Dr. Boulden's recommendation, a second opinion was 
 
            obtained from the Institute for Low Back Care in 
 
            Minneapolis, Minnesota, where claimant was seen on June 19, 
 
            1990, by Alexander Lifson, M.D.  Dr. Lifson recommended an 
 
            injection with Marcaine at the L5 level and, if claimant 
 
            received reliable pain relief for 3-5 hours, then he would 
 
            decompress the L5 nerve root.  If the pain relief was 
 
            incomplete or there was no pain relief, then he would 
 
            perform discography at the L4-5 and L5-6 levels to more 
 
            reliably pinpoint the actual source of the pain.  Dr. Lifson 
 
            added that, due to his young age, he would limit a fusion to 
 
            as few levels of the spine as possible.  Dr. Lifson 
 
            concluded his report as follows:
 
            
 
                 During his examination today Mr. Heidt appeared to 
 
                 be very concerned about his shoulder and arm pain 
 
                 and numbness.  He tried many times to impress upon 
 
                 me the fact that this is a work-related injury.  
 
                 He also displayed significant pain behavior during 
 
                 his examination, and I wonder if psychological 
 
                 screening might be helpful.
 
            
 
            (Exhibit 1, Central Iowa Orthopaedics, page 22)
 
            
 
                 Dr. Boulden agreed essentially with Dr. Lifson by his 
 
            entries of July 17, 1990, except he felt that the facet 
 
            blocks had pinpointed the source of the pain and that 
 
            discography would not add much more to the study at all.  
 
            Dr. Boulden concluded that claimant needed to decide whether 
 
            he wanted the decompression and fusion or not.  If he did 
 
            not want the surgery, then he had attained maximum medical 
 
            improvement (exhibit 1, Central Iowa Orthopaedics, pages 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            20-25).
 
            
 
                 On August 8, 1990, Dr. Boulden stated that, effective 
 
            July 17, 1990, the patient had reached his maximum medical 
 
            improvement based on conservative management and that, if he 
 
            elects no surgery, he should find work that does not require 
 
            repetitive bending, twisting or lifting.  With respect to 
 
            weight lifting restrictions, he recommended a functional 
 
            capacity examination.  Dr. Boulden stated that claimant had 
 
            sustained an approximate 13 percent disability which is 
 
            interpreted to mean a 13 percent permanent functional 
 
            impairment to the body as a whole due to the injury to the 
 
            lumbar spine (exhibit 1, Central Iowa Orthopaedics, page 
 
            26).
 
            
 
                 Dr. Boulden did not specifically state that claimant's 
 
            employment was the cause of the lumbosacral spine injury.  
 
            However, Dr. Boulden, and his associates Dr. Weatherwax and 
 
            Dr. Johnson, proceeded on the historical basis that this was 
 
            a work-related injury caused by lifting at work.  No other 
 
            cause was suggested for the injury.  The history which 
 
            claimant gave to the doctors was not contradicted, rebutted, 
 
            controverted or refuted by any other evidence in the case.  
 
            Although injury to the back is designated as an issue in 
 
            this case, defendants have not seriously disputed a back 
 
            injury either in their comments at the hearing or in their 
 
            post-hearing brief.
 
            
 
                 Wherefore, it is determined that claimant has sustained 
 
            an injury to his back, that is, his lumbosacral spine, on 
 
            June 9, 1989, which arose out of and in the course of his 
 
            employment with employer.
 
            
 
                                  injury -- neck
 
            
 
                 It is further determined that claimant did not sustain 
 
            an injury to his neck, more specifically, his neck, left 
 
            shoulder and left arm, on June 9, 1989, which arose out of 
 
            and in the course of his employment with employer.  
 
            Claimant's contentions that he mentioned these complaints to 
 
            his doctors is not supported by the medical records in 
 
            evidence.
 
            
 
                 Claimant testified that the company nurse took him to 
 
            the doctor on June 9, 1989, but there is no evidence of such 
 
            a visit in the medical records.  On June 12, 1989, Dr. Wirtz 
 
            recorded no neck or arm complaints.  Furthermore, Dr. Wirtz 
 
            did not even attribute the back complaints to claimant's 
 
            employment.  Claimant saw Dr. Weatherwax, Dr. Johnson and 
 
            Dr. Boulden on several occasions and there is no mention of 
 
            any neck, left arm or left shoulder complaints until 
 
            claimant returned to Dr. Johnson on February 20, 1991.  Dr. 
 
            Lifson did mention on June 19, 1990, a year after the injury 
 
            date, that claimant displayed significant pain behavior and 
 
            tried many times to impress upon him the fact that his left 
 
            shoulder and arm pain were work related.
 
            
 
                 As related by Dr. Lifson, it would appear that claimant 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            was making a self-serving statement rather than seeking 
 
            treatment since this is the first time that the left arm, 
 
            shoulder and neck complaints are mentioned in a doctor's 
 
            medical record, even though he did mention numbness from his 
 
            neck through his shoulder into his arm and fingertips to 
 
            Rick Jorgensen, a vocational rehabilitation specialist on 
 
            March 5, 1990 (exhibit 1, Central Iowa Orthopaedics, pages 
 
            22 and 27; exhibit 9, page 4).
 
            
 
                 Furthermore, claimant saw Daryl R. Short, a licensed 
 
            physical therapist, from July 6, 1989, through October 2, 
 
            1989, and claimant did not voice any complaints other than 
 
            left side low back pain, left buttock pain and left lower 
 
            extremity pain (exhibit 10, page 8).  Short did not believe 
 
            claimant related any other significant symptoms because it 
 
            was his practice to write them down if they were mentioned 
 
            (exhibit 10, page 14).  The witness had no recollection of 
 
            claimant complaining about pain and numbness in his left arm 
 
            (exhibit 10, page 25) nor did he recall claimant mentioning 
 
            tingling and numbness in his left hand (exhibit 10, page 
 
            27).
 
            
 
                 The notes of Thomas A. Wheatley, L.P.T., who treated 
 
            claimant from August 24, 1989, through September 12, 1989, 
 
            for degenerative disc disease, make no mention of any neck, 
 
            left shoulder or left arm complaints (exhibit 1, Wheatley, 
 
            pages 1-3).
 
            
 
                 Jorgensen, who accompanied claimant to the physician 
 
            visits on several occasions, reported on May 8, 1990 that, 
 
            "He mentioned the pain and numbness in his left arm to Dr. 
 
            Boulden, who stated it was unrelated to his back problems."  
 
            (Exhibit 9, page 9; exhibit 11, pages 16, 17 and 26).
 
            
 
                 Furthermore, Kim Brienzo, claim representative for the 
 
            insurance carrier, took a telephone statement from claimant 
 
            on July 3, 1989.  In that statement, claimant described how 
 
            he injured his back on June 9, 1989, by strenuous lifting at 
 
            work of parts that weighed possibly 75 or 85 pounds while 
 
            building pontoon boats.  Claimant stated that he pinched a 
 
            nerve in his back and it affected his left hip and left leg 
 
            clear to his left ankle and foot.  Claimant made no mention 
 
            of any problems with his neck, left shoulder or left arm.  
 
            Brienzo testified that, when she took the telephone 
 
            statement from claimant on July 3, 1989, he stated only that 
 
            he injured his back while lifting.  She acknowledged that 
 
            claimant's history and physical examination prior to this 
 
            employment show no prior neck or back problems.
 
            
 
                 After claimant returned to Dr. Johnson on February 20, 
 
            1991, an MRI disclosed a large left-sided disc at C5-6 which 
 
            was consistent with his left arm pain.  A subsequent 
 
            arthrogram on the left shoulder showed no evidence of 
 
            rotator cuff tear and a CT scan of the left shoulder was 
 
            also within normal limits (exhibit 1, Central Iowa 
 
            Orthopaedics, page 28).
 
            
 
                 Thomas W. Bower, a licensed physical therapist, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            performed an evaluation of claimant's neck pain and left 
 
            shoulder pain.  At that time, Bower stated:  "I've discussed 
 
            this particular patient with Dr. Johnson today, and it is 
 
            Dr. Johnson's feelings that he cannot, with any degree of 
 
            medical certainty, attribute the herniated disc directly to 
 
            the job."  (Exhibit 1, Thomas Bower, page 2).
 
            
 
                 Dr. Johnson testified by deposition on November 20, 
 
            1991, that, when he initially saw claimant on July 6, 1989, 
 
            claimant did not mention any problems other than his low 
 
            back and left leg.  Nor did he report to Dr. Weatherwax, his 
 
            associate, any problems associated with an injury to his 
 
            neck.  Dr. Johnson did not have any independent recollection 
 
            of claimant mentioning a neck problem.  Claimant did not 
 
            mention neck problems until his office visit on February 20, 
 
            1991.  Nevertheless, Dr. Johnson testified that, based upon 
 
            the history that claimant gave him in February of 1991, to 
 
            wit, that he had had pain in his neck since June 9, 1989, 
 
            then he would conclude that there was a causal relationship 
 
            between the injury of June 9, 1989, and his neck and left 
 
            arm complaints.
 
            
 
                 Dr. Johnson's opinion about causal connection is not 
 
            really an opinion but rather an assumption.  The question 
 
            was worded that assuming that claimant had neck and arm 
 
            problems in June of 1989 and Dr. Johnson added that he in 
 
            turn then would assume that the symptoms were related to the 
 
            lifting on June 9, 1989.  However, the true facts are that 
 
            there is no evidence of neck and arm pain until almost a 
 
            year later when it was mentioned to Jorgensen on March 5, 
 
            1990, and Dr. Lifson on June 19, 1990, and claimant did not 
 
            actually seek out treatment for it for almost another year 
 
            when he saw Dr. Johnson on February 20, 1991.
 
            
 
                 Dr. Johnson also testified that the radiologist noted 
 
            that claimant had a congenitally narrow spinal canal and the 
 
            MRI showed a herniation at C5-6 and bulging at C6-7.  He 
 
            added that the MRI findings were consistent with neck and 
 
            left arm complaints.
 
            
 
                 Dr. Johnson added that, the last time he saw claimant, 
 
            he recommended either cervical fusion or cervical epidural 
 
            injections but that claimant had not returned for either 
 
            one.  Dr. Johnson primarily recommended surgery to deal with 
 
            the problem and the epidural injection simply to help 
 
            control his pain.
 
            
 
                 Dr. Johnson acknowledged that his specialty was neck 
 
            problems.  For this reason, it would seem that, if claimant 
 
            had shown any signs of neck problems in the presence of a 
 
            neck specialist shortly after the injury, then Dr. Johnson 
 
            would have alerted to such complaints or physical 
 
            indications of neck problems even if they were not 
 
            vocalized.
 
            
 
                 Wherefore, it is determined that claimant did not 
 
            sustain an injury to his neck, left shoulder and left arm on 
 
            June 9, 1989, caused by heavy lifting which arose out of and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            in the course of his employment with employer.
 
            
 
             causal connection -- entitlement -- temporary disability
 
            
 
                 It is determined that the injury to claimant's back on 
 
            June 9, 1989, was the cause of temporary disability and that 
 
            claimant is entitled to healing period benefits from the 
 
            date of the injury, June 9, 1989, until Dr. Boulden 
 
            determined that claimant had reached maximum medical 
 
            improvement on July 17, 1990, a period of 57.571 weeks.
 
            
 
             causal connection -- entitlement -- permanent disability
 
            
 
                 It is determined that the injury to claimant's back on 
 
            June 9, 1989, was the cause of permanent disability and that 
 
            claimant has sustained a 45 percent industrial disability to 
 
            the body as a whole and is entitled to 225 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 The only impairment rating for claimant's back was 
 
            given by Dr. Boulden, the primary treating physician, in the 
 
            amount of 13 percent to the body as a whole.  This is a 
 
            fairly significant impairment rating for a lumbosacral 
 
            injury.  For restrictions, Dr. Boulden stated that claimant 
 
            should find work that does not require repetitive bending, 
 
            twisting and lifting.  He did not impose any lifting 
 
            restriction, but said that should be documented through a 
 
            work functional capacity examination.  There is no record 
 
            that a functional capacity examination was performed.  
 
            Claimant contended that Dr. Boulden told him not to lift 
 
            more than four or five pounds and Jorgensen shows on his 
 
            evaluation that claimant is limited to lifting, carrying, 
 
            pushing and pulling only five pounds (exhibit 7, pages 1 and 
 
            2; exhibit 9, page 3).
 
            
 
                 A job analysis of claimant's former job completed by 
 
            one of the successors to the employer in this case shows 
 
            that the heaviest pieces weighed 60 pounds and that they are 
 
            rarely carried by one person (exhibit 9, page 1).  Even 
 
            without direct evidence of a medically-imposed lifting 
 
            restriction by Dr. Boulden, agency expertise dictates that a 
 
            person with a bulging L4-5 disc is foreclosed from heavy 
 
            lifting.  Heavy lifting is defined as 50 pounds or more.  
 
            Therefore, claimant is foreclosed from his former employment 
 
            of building pontoon boats and is also foreclosed from all 
 
            other manual labor jobs that would require heavy lifting 
 
            because of his L4-5 bulging disc.
 
            
 
                 Dr. Boulden indicated that claimant could return to 
 
            work except for repetitive bending, twisting and lifting, 
 
            and whatever lifting restriction would be imposed by a 
 
            functional capacity examination.  By contrast, however, Dr. 
 
            Lifson stated on January 4, 1991, that claimant's pain was 
 
            significantly aggravated by a minimal increase in his level 
 
            of physical activity.  His physical examination on that date 
 
            revealed evidence of severe left sciatic radiculitis, a 
 
            shift of his back, spasms of the paravertebral muscles, a 
 
            positive straight leg raising sign, and tenderness to 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            palpation of the sciatic notch and peroneal nerves.  He said 
 
            there was significant compression of the exiting L5 nerve 
 
            root on the left due to the lateral disc herniation and 
 
            osteophyte formation.  Dr. Lifson's diagnosis was lateral 
 
            spinal stenosis and a lateral herniation of the disc at the 
 
            L5-S1 level with compressive L5 radiculitis.  The vertebra 
 
            number difference between Dr. Boulden and Dr. Lifson is 
 
            because Dr. Boulden maintained that claimant had only five 
 
            lumbar vertebrae whereas Dr. Lifson maintained claimant had 
 
            six lumbar vertebrae.
 
            
 
                 Dr. Lifson concluded:  "His physical activities are 
 
            severely restricted, and he can perform only sedentary work 
 
            because of his continuous, activity-related leg pain.  It 
 
            does not appear that he will be able to perform any type of 
 
            physical work with this problem."  (Exhibit 1, Institute for 
 
            Low Back Care, pages 9 and 10).  Dr. Lifson speculated that, 
 
            after surgery, claimant would receive relief from his leg 
 
            pain and could return to some type of physical activity 
 
            which might include a 35-50 pound lifting limitation after 
 
            healing had occurred (exhibit 1, Institute for Low Back 
 
            Care, pages 9 and 10).
 
            
 
                 Whether claimant can work as suggested by Dr. Boulden 
 
            or whether he can perform only sedentary work as suggested 
 
            by Dr. Lifson is difficult to determine because claimant has 
 
            not attempted to do any work of any kind since the injury.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).  However, taking into 
 
            consideration all the evidence taken as a whole, it is 
 
            determined that claimant could perform sedentary work if he 
 
            is motivated to do so.  It should be noted that claimant has 
 
            not made any attempt to find any kind of work since the 
 
            injury.
 
            
 
                 An employee seeking workers' compensation would do well 
 
            to make a diligent attempt to find employment.  Hild v. 
 
            Natkin & Co, I Iowa Industrial Commissioner Report 144 (App. 
 
            Decn. 1981); Beintema v. Sioux City Eng'g Co., II Iowa 
 
            Industrial Commissioner Report 24 (1981); Cory v. 
 
            Northwestern States Portland Cement Co., Thirty-third 
 
            Biennial Report of the Industrial Commissioner 104 (1976).  
 
            Employers are responsible for the reduction in earning 
 
            capacity caused by the injury; they are not responsible for 
 
            a reduction in earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire & Rubber Co., 
 
            III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Claimant is handicapped by an apparent learning 
 
            disability and his inability to read.  Claimant testified 
 
            and school records verify that claimant did not start school 
 
            in kindergarten until he was seven years old (exhibit 5, 
 
            page 1).  A report of psychological examination dated 
 
            January 11, 1965, disclosed that both performance and verbal 
 
            tests were well below his chronological age.  It stated his 
 
            IQ was 78.  The report stated that claimant was in the 
 
            borderline mentally retarded classification (exhibit 5, 
 
            pages 9 and 10).  Claimant testified that he always attended 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            special education classes and had difficulty with those.  
 
            With his father's permission, he was permitted to quit 
 
            school at age 16 (exhibit 5, page 11).  Claimant further 
 
            testified that he could read only at the third grade level 
 
            and that was with some difficulty.  He demonstrated at the 
 
            hearing that he could pick out only a few words in his 
 
            kindergarten reading book.  There was evidence that claimant 
 
            obtained this job through the JTPA (Job Training Partnership 
 
            Act) because of his learning disability (exhibit 4, page 4).  
 
            This program pays a substantial portion of claimant's salary 
 
            or wages in order to induce an employer to hire a 
 
            disadvantaged worker.
 
            
 
                 Jorgensen explained that JTPA is a program in order to 
 
            provide on-the-job training for disadvantaged individuals 
 
            such as low-income persons, persons displaced from another 
 
            job, dislocated workers, and the economically disadvantaged 
 
            (exhibit 11, pages 14 and 15).  As an inducement for 
 
            employers to employ such employees, the government pays a 
 
            portion of their wages during the on-the-job training 
 
            period.
 
            
 
                 Defendants' attorney contended in her brief that a 
 
            person with little or no earning capacity before the injury 
 
            would not sustain a major loss of earning capacity after an 
 
            injury.  Claimant's earnings from 1973 when he was age 15 
 
            until 1989 when he was age 31 are as follows:
 
            
 
                   YEAR      EARNINGS         YEAR      EARNINGS 
 
            
 
                   1973     $   166.40        1981     $ 5,450.66
 
                   1974         696.03        1982         367.51
 
                   1975         960.75        1983       2,082.35
 
                   1976       1,124.95        1984       1,297.14
 
                   1977       7,139.62        1985       3,386.65
 
                   1978      10,772.71        1986         140.70
 
                   1979      10,494.52        1987            .00
 
                   1980         556.85        1988            .00
 
                                              1989       1,732.18
 
            
 
            (Exhibit 8, page 2)
 
            
 
                 Industrial disability has been referred to as loss 
 
                 on earning capacity.  Prior to June 9, 1989, the 
 
                 Claimant never supported his family financially.  
 
                 It may be suggested that the Claimant had no 
 
                 earning capacity prior to June 9, 1989.  The 
 
                 Claimant has not looked for employment and has 
 
                 refused to make a decision regarding back surgery.
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            All of these factors should contribute to a 
 
            minimal amount of industrial disability.
 
            
 
            (Defendants' post-hearing brief, pages 8 and 9).
 
            
 
                 There is evidence that claimant also lacks motivation 
 
            to work, not only from his earnings record but from his own 
 
            testimony that his wife worked and he maintained the home 
 
            and looked after the children.  In 1987, claimant applied 
 
            for Social Security disability based upon his learning 
 
            disability and stress (nervousness) (exhibit 1, Dr. Northup, 
 
            page 6).  His family physician, M. L. Northup, M.D., wrote 
 
            to Disability Determination Services Bureau on March 16, 
 
            1987, that he had taken care of Steven Heidt since 1960.  He 
 
            said that he knew claimant was in a slow learning group in 
 
            the first years at school and that he withdrew from school 
 
            in the ninth grade.  Dr. Northup concluded his letter by 
 
            stating, "Much of his stress is related to a marriage 
 
            problem, as I feel his wife is getting tired of supporting 
 
            the family."  (Exhibit 1, Dr. Northup, page 7).
 
            
 
                 At the same time, it is determined that a certain 
 
            amount of claimant's lack of motivation to work is due to 
 
            (1) his inability to read and learn in order to perform many 
 
            jobs and (2) the treatment he has received on many jobs due 
 
            to his poor educational level and his inability to perform 
 
            as a better educated person would perform.  When he was 
 
            given psychological tests in Minnesota at the request of Dr. 
 
            Lifson, the MMPI was administered by audio tape and the 
 
            other tests were read to claimant by a staff member.
 
            
 
                 Thus, it is concluded that claimant attended school 
 
            until the ninth grade, but because of his reading 
 
            disability, he probably did not obtain a ninth grade 
 
            education.  It has also been established that claimant's 
 
            learning disability and inability to read have been an 
 
            impediment to finding employment prior to this injury.  
 
            These factors, coupled with the back injury, have caused a 
 
            significant loss of earning capacity which is much greater 
 
            than it would be for a person without a learning disability 
 
            and one who could read as a normally literate person should 
 
            be able to read.
 
            
 
                 Defendants pointed out that claimant has maintained a 
 
            driver's license since age 16 and, until 1991, also 
 
            maintained a chauffeur's license.  In addition, he has 
 
            operated a forklift truck and performed the duties of a 
 
            house husband when his wife worked by performing housework, 
 
            cooking, cleaning and caring for the children.
 
            
 
                 At claimant's young age, in the early 30s, there is 
 
            still time to develop work which he can perform within his 
 
            restrictions.  He is foreclosed from his former employment 
 
            and from all heavy work.  Michael v. Harrison County, 
 
            Thirty-Fourth Biennial Report of the Industrial 
 
            Commissioner, 218, 220 (App. Decn. 1979); Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            Report 282 (1984).  But there are a number of light jobs and 
 
            possibly even medium jobs that claimant could perform which 
 
            do not require repetitive bending, twisting and lifting.  
 
            Because of his learning disabilities, claimant is not a 
 
            candidate for academic retraining.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 78 
 
            (1984).  But there are a number of jobs that claimant could 
 
            learn through on-the-job training.  There is nothing to 
 
            preclude claimant from applying for Job Training Partnership 
 
            Act assistance again in finding employment.
 
            
 
                 Thus, claimant's young age and potential for on-the-job 
 
            training or simply employment through the JTPA tend to 
 
            reduce his industrial disability.  The fact that he is 
 
            foreclosed from his former employment and all heavy work and 
 
            typically needs special assistance in order to find work 
 
            such as the JTPA significantly increase his industrial 
 
            disability.
 
            
 
                 While there is some evidence that claimant had minor 
 
            injuries to his back in the past, these appear to be 
 
            temporary in nature and claimant was not suffering from any 
 
            known permanent disability at the time this injury occurred 
 
            (exhibit 1, Dr. Northup, pages 3 and 4).
 
            
 
                 Claimant's father, Francis Heidt, testified that 
 
            claimant did not have any neck or back problems prior to his 
 
            employment with this employer.  Since this injury, claimant 
 
            appears to be in pain when he stands, sits or walks around 
 
            and he complains of headaches and dizziness.  He has a 
 
            slight limp and he hobbles when he walks.  He does not have 
 
            the pep and energy that he possessed when he was younger.
 
            
 
                 Wherefore, based upon (1) a 13 percent permanent 
 
            impairment to the lumbosacral spine, (2) restrictions of no 
 
            repetitive bending, twisting and lifting, (3) being 
 
            foreclosed from heavy work due to a bulging unoperated L4-5 
 
            lumbosacral disc for which a decompression and spinal fusion 
 
            at multiple levels has been recommended by Dr. Boulden, (4) 
 
            the fact that claimant is foreclosed from this employment 
 
            and all heavy work employment and may be able to perform 
 
            only sedentary work, (5) the fact that claimant has a 
 
            learning disability, a third grade reading level and has 
 
            required assistance from the JTPA in the past in order to 
 
            find employment, (6) the fact that claimant is in his early 
 
            thirties, (7) attendance at school only through age 16 and 
 
            the ninth grade, (8) the fact that claimant is not suitable 
 
            for academic retraining, (9) claimant's past employments 
 
            have all been manual labor types of work and have provided 
 
            him with very few transferrable skills, (10) and based upon 
 
            all of the evidence in the case, (11) and based upon all the 
 
            factors used to determine industrial disability Peterson v. 
 
            Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (App. Decn., 
 
            February 28, 1985), and Christensen v. Hagen, Inc., Vol. 1 
 
            No. 3 State of Iowa Industrial Commissioner Decisions 529 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            (App. Decn., March 26, 1985), and (12) applying agency 
 
            expertise, Iowa Administrative Procedure Act 17A.14(5), it 
 
            is determined that claimant has sustained a 45 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 225 weeks of permanent partial disability benefits.
 
            
 
                 Claimant's background does not give him a wide variety 
 
            of employment prospects for the future; nor does it provide 
 
            him with a wide variety of transferrable skills for future 
 
            employment.
 
            
 
                 Claimant is not permanently and totally disabled 
 
            (transcript, page 28).
 
            
 
                                       rate
 
            
 
                 It is determined that the proper rate of compensation 
 
            is $149.47 per week as contended by claimant.
 
            
 
                 The figures used to calculate the rate are found at 
 
            exhibit 2, page 4.
 
            
 
                 Defendants insist that the rate calculation should 
 
            include the week of April 14, 1989, during which claimant 
 
            worked only approximately one day.  Claimant contends this 
 
            week should be eliminated because it is not representative.  
 
            Claimant's contention is correct.  Defendants' contention is 
 
            incorrect.  The week of April 14, 1989, is an 
 
            unrepresentative week.  Lewis v. Aalf's Mfg. Co., I Iowa 
 
            Industrial Commissioner Report 206, 207 (App. Decn. 1980); 
 
            Schotanus v. Command Hydraulics, Inc., I Iowa Industrial 
 
            Commissioner Report 294, 298-99 (1981).
 
            
 
                 In this case, claimant had worked only 11 
 
            representative weeks prior to the injury and, therefore, the 
 
            total 11 representative weeks are added and divided by 11 to 
 
            arrive at the proper rate of compensation.  Daggett v. Ace 
 
            Lines, File No. 818879 (App. Decn., August 8, 1990); 
 
            Anderson v. High Rise Constr. Specialists, Inc., File No. 
 
            850996 (App. Decn., July 31, 1990); Barker v. City Wide 
 
            Cartage, I Iowa Industrial Commissioner Report 12, 15 (App. 
 
            Decn. 1980).
 
            
 
                 The 11 representative weeks add up to $2,292.23, 
 
            divided by the 11 representative weeks equals a gross weekly 
 
            wage of $208.38 per week.  The gross weekly wage for a 
 
            married person with four exemptions as stipulated to by the 
 
            parties for an injury which occurred on June 9, 1989, using 
 
            the Guide to Iowa Workers' Compensation Claim Handling for 
 
            the period beginning July 1, 1988, on page 21 shows that the 
 
            proper rate is $149.47 per week as contended by claimant 
 
            (transcript, page 7).
 
            
 
                 Prior to hearing, the insurance company based their 
 
            payments on 13 weeks which included not only the 
 
            nonrepresentative week but also included the week after the 
 
            injury, which was clearly wrong.  Thus claimant was paid at 
 
            the rate of only $132.70 per week prior to hearing whereas 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            the proper rate of compensation was $149.47 per week.  It 
 
            was the intent of the legislature to provide an injured 
 
            employee with prompt, regular, systematic, reliable and 
 
            correct payments of workers' compensation benefits to 
 
            provide for the basic needs of life during a period of 
 
            recovery from injury.  The employer and the insurance 
 
            carrier calculate the rate and are expected to compute the 
 
            rate correctly and to pay claimant correctly, evenly and 
 
            consistently during the period of disability to prevent 
 
            financial hardship in addition to the hardship of recovering 
 
            from the injury.  Helmle v. Beatrice Cheese, Inc., File No. 
 
            918759 (Arb. Decn., April 22, 1992) (on appeal).
 
            
 
                             future medical benefits
 
            
 
                 Claimant asks for a determination of whether claimant 
 
            is entitled to future medical benefits for surgery on his 
 
            neck and his back.  Since the neck was not an injury which 
 
            arose out of and in the course of employment with employer, 
 
            defendants are not liable for neck surgery (transcript, 
 
            pages 16 and 30).
 
            
 
                 Iowa Code section 85.27 provides that claimant is 
 
            entitled to reasonable medical expenses for a compensable 
 
            injury.  The injury to the back arose out of and in the 
 
            course of employment with employer and is compensable.
 
            
 
                 Dr. Boulden recommended a decompression and fusion.  
 
            Therefore, claimant is entitled to decompression and fusion.  
 
            The only reason the surgery has never been performed is 
 
            because claimant has never consented to it.
 
            
 
                 At the same time, Dr. Lifson recommended that the exact 
 
            point of irritation be more clearly defined before surgery 
 
            is performed.  He recommended an injection at L5 and, 
 
            secondly, discography.  Since Dr. Lifson is an 
 
            employer-approved physician, claimant is entitled to the 
 
            injection at L5 and the discography.  The only reason it has 
 
            not been performed is because claimant has not consented to 
 
            it.  It should be noted that Dr. Boulden felt that the facet 
 
            blocks which he performed on two occasions ruled out the 
 
            necessity for any additional injections or discography.
 
            
 
                 Whether claimant receives any of these surgical 
 
            procedures is entirely up to claimant and the doctors who 
 
            have recommended them.
 
            
 
                 It has been determined that the employer's right to 
 
            choose the care as set forth in Iowa Code section 85.27 
 
            means the right to choose the medical providers of the care, 
 
            but it does not give the employer the right to interfere 
 
            with the judgment of the medical professionals in 
 
            determining how an injured worker should be evaluated and 
 
            treated.  It has been held that insurance claim adjusters, 
 
            personnel managers and defense attorneys do not have the 
 
            medical expertise to prevent an authorized physician from 
 
            performing whatever medical procedures the physician deems 
 
            appropriate and that, if they do so, there is a strong 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            likelihood that the employer has failed to provide 
 
            reasonable medical care.  Where an employer fails to follow 
 
            the recommendations of its authorized treating physicians, 
 
            this constitutes a failure to provide reasonable care in 
 
            most circumstances.  Martin v. Armour Dial, Inc., File No. 
 
            754732 (Arb. Decn., July 31, 1985); Shiflett v. Clearfield 
 
            Veterinary Clinic, II Iowa Industrial Commissioner Report 
 
            344 (1982); Pote v. Mickow Corp., File No. 694639 
 
            (Review-Reopening Decn., June 17, 1986).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to any future treatment recommended by either Dr. Boulden, 
 
            the primary treating physician, or Dr. Lifson, who is also 
 
            an authorized physician, irrespective of whether this means 
 
            an injection at L5 and discography recommended by Dr. 
 
            Lifson, or the decompression and fusion recommended by Dr. 
 
            Boulden.  All of these courses of action would constitute 
 
            reasonable medical treatment.
 
            
 
                 A complicating factor for claimant, however, is the 
 
            fact that a psychologist, Robert L. Karol, Ph.D., L.C.P., 
 
            who saw claimant at the recommendation of Dr. Lifson, 
 
            recommended against surgery (exhibit 1, Institute for Low 
 
            Back Care, pages 4-8).  On June 19, 1990, Dr. Lifson closed 
 
            that report by stating he wondered if psychological 
 
            screening might not be helpful.  When claimant returned to 
 
            see him on November 29, 1990, Dr. Lifson did in fact refer 
 
            claimant for a psychological evaluation for fusion surgery, 
 
            and because of his concern on account of claimant's pain 
 
            behavior.
 
            
 
                 Dr. Karol said that the overall picture was that of an 
 
            individual experiencing significant pain that is having a 
 
            large degree of impact on his life, although the pain 
 
            aversiveness is low.  He said the patient was relatively 
 
            unsophisticated in his conceptualization of his problem and 
 
            generally lacking in insight.  Dr. Karol believed that his 
 
            unsophisticated conceptualization of his problem and his 
 
            lack of insight were leading to his pain behavior rather 
 
            than the fact that claimant was suffering from a classic 
 
            chronic pain syndrome.
 
            
 
                 The doctor said that, regarding surgery, claimant 
 
            indicated he was scared.  Therefore, Dr. Karol stated that, 
 
            from a psychological perspective, in general it would be 
 
            best to avoid it because he had concerns regarding 
 
            claimant's ability to be compliant with rehabilitation 
 
            directions and his understanding of the implications of 
 
            surgery.  Dr. Karol stated claimant has functioned in a very 
 
            narrow niche in life constrained by the reading problems and 
 
            his low educational level.  He further recommended that the 
 
            first surgery be designed to maximize claimant's chances for 
 
            success, because (1) he has functioned in a very narrow 
 
            niche in life in the past constrained by the reading 
 
            problems and his low educational level, and (2) a series of 
 
            surgeries and their attendant life disruption will make it 
 
            progressively harder for claimant to reestablish a 
 
            successful niche.
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Karol said that, if surgery can enable claimant to 
 
            return to fairly heavy work, that would probably be the best 
 
            indication for proceeding.  Otherwise, should the surgery 
 
            merely relieve pain, but still not permit him to do labor 
 
            work, then he will remain disabled in terms of employment 
 
            regardless of the surgery.  Hence, and in light of all these 
 
            considerations, Dr. Karol would view him as an uncertain 
 
            candidate at best and would proceed only if there was an 
 
            anticipation that he can be placed back into a successful 
 
            niche.  He added that claimant has a broader problem than 
 
            merely reading; he saw it as a wider learning disability 
 
            problem (exhibit 1, Institute for Low Back Care, pages 4-8).
 
            
 
                 Jorgensen commented numerous times in his reports that 
 
            claimant was confused about what to do, more specifically, 
 
            whether to have surgery or not to have surgery, whether to 
 
            follow Dr. Lifson's recommendation or to follow Dr. 
 
            Boulden's recommendation or just exactly what he should or 
 
            should not do.  In all of his many reports, there is no 
 
            evidence that Jorgensen provided any assistance to claimant 
 
            to help him resolve this confusion or cope with his fear of 
 
            surgery (exhibit 11, pages 24, 26, 39, 42, 53 and 56).  When 
 
            claimant could not decide what to do, Jorgensen was 
 
            instructed to close his file on August 27, 1990 (exhibit 11, 
 
            page 28).
 
            
 
                 When claimant did not choose to have the surgery and 
 
            Dr. Boulden told him to return to work, Jorgensen 
 
            acknowledged that he did not attempt to help claimant find a 
 
            job within his restrictions because he was not requested to 
 
            do so (exhibit 11, page 29).  Jorgensen admitted that, if he 
 
            had been asked to do so, he would have been working with a 
 
            person with an inability to access a wide variety of jobs 
 
            because of his past work experience (exhibit 11, page 16) 
 
            and claimant's job history did not indicate a wide variety 
 
            of transferrable skills (exhibit 11, page 30).  Jorgensen 
 
            agreed that claimant was relatively unsophisticated in 
 
            understanding his problem (exhibit 11, page 48).  However, 
 
            Jorgensen did not discuss Dr. Karol's report with claimant 
 
            (exhibit 11, page 49).  And Jorgensen doubted if claimant 
 
            could understand Dr. Karol's report with his third grade 
 
            reading level (exhibit 11, page 50).
 
            
 
                 Claimant's confusion was compounded by the fact that, 
 
            after Dr. Karol recommended against surgery, Dr. Johnson 
 
            recommended that he have a cervical disc surgery; however, 
 
            Jorgensen did not discuss Dr. Karol's report with Dr. 
 
            Johnson (exhibit 11, page 53).
 
            
 
                 Thus, even though Jorgensen was charged with medical 
 
            management of the file, he did nothing to assist claimant in 
 
            resolving the medical confusion caused by the conflicting 
 
            reports of the doctors.  Moreover, Jorgensen provided no 
 
            vocational rehabilitation to claimant by assisting claimant 
 
            determine what work he could perform, nor did he attempt to 
 
            place him in any job because he was not instructed to do so.
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The first paragraph in Jorgensen's career objective 
 
            states that he seeks a position that will enable him to 
 
            assist injured persons achieve a level of functioning which 
 
            is as close as possible to their pre-injury status by 
 
            coordinating services for them in an efficient manner 
 
            (exhibit 11, deposition exhibit 1).  Jorgensen provided 
 
            excellent on-site observation and reporting to defendants, 
 
            but he did not help claimant resolve any of his medical 
 
            dilemmas nor did he attempt to steer claimant vocationally 
 
            toward work that he could perform or attempt to place 
 
            claimant in any type of remunerative employment.  Jorgensen 
 
            agreed that, after he received Dr. Karol's report, he could 
 
            understand why claimant might be confused (exhibit 11, page 
 
            56).  Jorgensen said he had never been requested to evaluate 
 
            claimant's employability (exhibit 11, page 57) and he 
 
            refused to speculate whether there would be jobs which 
 
            claimant could do.
 
            
 
                 Even defendants' counsel acknowledged that she did not 
 
            know if medical management was the correct term to use or 
 
            not in describing the work which Jorgensen did with claimant 
 
            (exhibit 11, page 60).  Jorgensen did do a good job of 
 
            providing information about what the claimant was thinking, 
 
            saying and doing and what the doctors were thinking, saying 
 
            and doing which was useful information in the determination 
 
            of the issues in this case.  He also provided information 
 
            about the transferrable skills possessed by the injured 
 
            employee.  Lawyer and Higgs, Iowa Workers' Compensation--Law 
 
            and Practice, (2nd ed.) section 13-5, page 132.
 
            
 
                 Defendants are not exonerated from providing the 
 
            surgical procedures recommended by Dr. Lifson and Dr. 
 
            Boulden because Dr. Karol cautioned against surgery.  Dr. 
 
            Karol's evaluation is a factor that claimant, Dr. Boulden 
 
            and Dr. Lifson should take into consideration in making 
 
            their final decisions.
 
            
 
                 In conclusion, defendants are entitled to choose the 
 
            care providers.  However, they are obligated to follow the 
 
            reasonable recommendations of the medical providers they 
 
            have selected.  Claimant is not entitled to surgery on his 
 
            neck because it has been found that this was not an injury 
 
            arising out of and in the course of his employment with 
 
            employer.  With respect to his back, claimant is entitled to 
 
            follow any of the reasonable recommendations of either Dr. 
 
            Lifson or Dr. Boulden or any other physician authorized by 
 
            the employer and its insurance carrier.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury on 
 
            June 9, 1989, to his back, more specifically, the 
 
            lumbosacral spine, which arose out of and in the course of 
 
            employment with employer.  Claimant did not sustain the 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
            
 
            burden of proof by a preponderance of the evidence that he 
 
            sustained an injury to his neck, left shoulder and left arm 
 
            on June 9, 1989, which arose out of and in the course of his 
 
            employment with employer.  Iowa Code section 85.3(1).  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 That the injury of June 9, 1989, to claimant's back was 
 
            the cause of temporary disability.  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).
 
            
 
                 That claimant is entitled to healing period benefits 
 
            from the date of the injury, June 9, 1989, until Dr. 
 
            Boulden, the treating physician, determined that claimant 
 
            had attained maximum medical improvement on June 17, 1990, a 
 
            period of 57.571 weeks.  Iowa Code section 85.34(1).
 
            
 
                 That the injury to claimant's back on June 9, 1989, was 
 
            the cause of permanent disability.  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).
 
            
 
                 That claimant sustained a 45 percent industrial 
 
            disability to the body as a whole and is entitled to 225 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 That the proper rate of compensation is $149.47 per 
 
            week. Iowa Code section 85.36(1).
 
            
 
                 That claimant is entitled to any and all future medical 
 
            diagnostic procedures or treatment procedures recommended by 
 
            authorized physicians which are reasonable to include spinal 
 
            injections, discography and decompression and fusion of 
 
            claimant's lumbosacral spine.  Pote v. Mickow Corp., File 
 
            No. 694639 (Review-Reopening Decn., June 17, 1986).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fifty-seven point five 
 
            seven one (57.571) weeks of healing period benefits for the 
 
            period from June 9, 1989, to July 17, 1990, at the rate of 
 
            one hundred forty-nine and 47/100 dollars ($149.47) per week 
 
            in the total amount of eight thousand six hundred five and 
 
            14/100 dollars ($8,605.14).
 
            
 
                 That defendants pay to claimant two hundred twenty-five 
 
            (225) weeks of permanent partial disability benefits based 
 
            upon a forty-five percent (45%) industrial disability to the 
 
            body as a whole at the rate of one hundred forty-nine and 
 
            47/100 dollars ($149.47) per week in the total amount of 
 
            thirty-three thousand six hundred thirty and 75/100 dollars 
 
            ($33,630.75) commencing on July 17, 1990.
 
            
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
            
 
                 That defendants are entitled to credit for one hundred 
 
            thirty point one four three (130.143) weeks of workers' 
 
            compensation benefits paid to claimant prior to hearing at 
 
            the rate of one hundred thirty-two and 70/100 dollars 
 
            ($132.70) per week in the total amount of seventeen thousand 
 
            two hundred sixty-nine and 98/100 dollars ($17,269.98).
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing, are charged to defendants pursuant to 
 
            Iowa Code section 86.19(1), 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Fredd J. Haas
 
            Attorney at Law
 
            5001 SW Ninth Street
 
            Des Moines, Iowa  50315
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1106; 5-1108.50; 5-1401
 
                      5-1402.20; 5-1402.30; 5-1802
 
                      5-1803; 2501; 2700; 5-2902
 
                      5-3000; 5-3001; 5-3002; 5-3003
 
                      3102
 
                      Filed May 19, 1992
 
                      WALTER R. McMANUS, JR.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN ALAN HEIDT,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 921851
 
                                          :
 
            MISTY HARBOR, LTD.,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1106; 5-1108.50; 5-1401; 5-1402.20; 5-1402.30; 5-2902
 
            It was determined claimant sustained an injury to his back 
 
            from heavy lifting at work; but that he did not sustain an 
 
            injury to his neck from heavy lifting at work.
 
            No doctor specifically stated that the injury was caused by 
 
            the employment, but three of his treating physicians who 
 
            were associates in the same firm all proceeded on the 
 
            historical basis that lifting at work was the cause of his 
 
            back problems.  No other cause was seriously suggested.
 
            
 
            5-1108.50
 
            It was determined that the injury was the cause of both 
 
            temporary and permanent disability.
 
            
 
            5-1802
 
            Claimant was awarded healing period benefits from date of 
 
            injury to date of maximum medical improvement.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            5-1803
 
            Claimant awarded 225 weeks of permanent partial disability 
 
            for an industrial disability of 45 percent to the body as a 
 
            whole.  The only permanent impairment rating of 13 percent 
 
            was not controverted.  Claimant was foreclosed from current 
 
            employment and heavy work employment in the future.  His few 
 
            limited past employments were of a manual labor type.
 
            A significant industrial disability factor was that claimant 
 
            had a severe learning disability, a third grade reading 
 
            level, a ninth grade education as a special education 
 
            student before he quit school, and few or no transferrable 
 
            skills.  Another significant factor is that claimant had no 
 
            income for three years prior to the injury (his wife worked 
 
            while he cared for the home and children) and defendants 
 
            contended that, if you do not have much earning capacity in 
 
            the first place prior to injury, then it is difficult to say 
 
            you could sustain a very big loss of earning capacity after 
 
            an injury.  Claimant had a very spotty earnings record over 
 
            his working lifetime.  He had not made any effort to find 
 
            work since the injury.
 
            
 
            3102
 
            A vocational rehabilitation specialist provided excellent 
 
            on-site observation and reporting on what claimant and the 
 
            doctors were saying, thinking and doing, but did nothing to 
 
            assist claimant resolve medical conflicts and did nothing to 
 
            assist claimant find work because he was not instructed to 
 
            do so.  Yet, the information he provided helped resolve 
 
            issues in the case.
 
            
 
            2501; 2700
 
            Defendants get to choose the medical providers, but then 
 
            they are obligated to follow the recommendations made by the 
 
            medical providers.
 
            The fact that a psychologist cautioned that claimant was not 
 
            a good candidate for surgery because of the marginally 
 
            functional life he had lived is only one factor for surgeons 
 
            and the claimant to consider in making a determination about 
 
            whether to have surgery.  It would not justify defendants in 
 
            denying surgery to claimant.
 
            
 
            5-3000; 5-3001; 5-3002; 5-3003
 
            The rate was determined by eliminating a nonrepresentative 
 
            week in which the employee worked only one day.  Claimant 
 
            had worked only 11 representative weeks so these weeks were 
 
            totalled and divided by 11.  Cites.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES A. BLAIR,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 963033
 
                                          :                922006
 
            FARMLAND FOODS, INC.,         :
 
                                              A R B T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA LIFE & CASUALTY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a consolidated contested case proceeding upon 
 
            petitions in arbitration filed by claimant James A. Blair 
 
            against his former employer, Farmland Foods, and its 
 
            insurance carrier, Aetna Life and Casualty.  In file number 
 
            922006, Mr. Blair alleges that he sustained a back injury 
 
            arising out of and in the course of employment on July 3, 
 
            1989.  In file number 963033, Mr. Blair alleges a similar 
 
            injury on August 7, 1990.
 
            
 
                 A hearing was accordingly held in Sioux City, Iowa on 
 
            January 27, 1994.  The record consists of joint exhibits 1-7 
 
            and 9-40, defendants' exhibits C-F and the testimony of 
 
            claimant and David Moore.  Objections to defendants' 
 
            exhibits G and H were taken under advisement, and are at 
 
            this time overruled.  Defendants' exhibits G and H are 
 
            hereby received.
 
            
 
                                      ISSUES
 
            
 
                 The hearing report submitted by the parties contains a 
 
            stipulation that claimant sustained injury arising out of 
 
            and in the course of employment on July 3, 1989.  Defendants 
 
            sought to dispute that issue with respect to the 1990 claim.  
 
            However, the prehearing conference report submitted by the 
 
            parties on January 29, 1993 did not identify "arising out of 
 
            " as an issue in either case.  Under paragraph ten of the 
 
            hearing assignment order, the issues to be heard are only 
 
            those identified in the prehearing conference report, and 
 
            additional issues may be allowed only upon a showing that 
 
            opposing parties are not unfairly surprised.  Defendants 
 
            were not allowed to dispute the "arising out of" issue in 
 
            either case.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 The parties have stipulated to the following in file 
 
            number 922006 (7-3-89):
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment;
 
            
 
                    2.  The injury caused temporary disability, 
 
                    the extent of which is no longer in dispute;
 
            
 
                    3.  Permanent disability, if any, should be 
 
                    compensated industrially;
 
            
 
                    4.  At the time of injury, claimant was 
 
                    married, entitled to five exemptions and had 
 
                    average gross weekly wages of $444.55;
 
            
 
                    5.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    6.  Defendants are entitled to credit 
 
                    totalling $656.17.
 
            
 
                 Issues presented for resolution in file number 922006 
 
            include:
 
            
 
                    1.  Whether the injury caused permanent 
 
                    disability;
 
            
 
                    2.  The extent of permanent disability; and,
 
            
 
                    3.  The commencement date for permanent 
 
                    disability benefits.
 
            
 
                 The parties calculated the correct rate at $287.04.  
 
            However, the rate tables published by the commissioner 
 
            reflect that an individual with claimant's gross weekly 
 
            earnings, marital status and number of exemptions is 
 
            entitled to a rate of $291.52.  
 
            
 
                 The parties entered into the following stipulations (or 
 
            were not allowed to dispute) in file number 963033 (8-7-90):
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment;
 
            
 
                    2.  The injury caused temporary disability, 
 
                    the extent of which is no longer in dispute;
 
            
 
                    3.  Permanent disability, if any, should be 
 
                    compensated industrially;
 
            
 
                    4.  The correct rate of compensation is 
 
                    $299.74;
 
            
 
                    5.  Medical benefits are no longer in 
 
                    dispute; and,
 
            
 
                    6.  Defendants paid $171.15 for temporary 
 
                    total disability/healing period, but are not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    entitled to credit against an award of 
 
                    permanent disability.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether the injury caused permanent 
 
                    disability;
 
            
 
                    2.  The extent of permanent disability; and,
 
            
 
                    3.  The commencement date for benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 James Blair, 35 years of age at hearing, left high 
 
            school during his senior year, but earned a GED in 1984.  
 
            Claimant worked for defendant Farmland Foods, a meat packing 
 
            business, from the time he left high school until his 
 
            discharge in May 1993.  Claimant had no other significant 
 
            employment relationships during this time, but has engaged 
 
            in a farming operation, increasingly so since the work 
 
            injuries at issue here.
 
            
 
                 Claimant mostly did knife work until undergoing 
 
            bilateral surgical procedures for carpal tunnel syndrome in 
 
            1988.  Thereafter, he bid into a "pack off" job in the 
 
            boning room, which involved boxing and weighing heavy (50 
 
            pounds) boxes of meat along with pushing heavy bone carts 
 
            (700-1100 pounds) and dumping them into a chute.
 
            
 
                 Claimant has a history of back problems dating back to 
 
            1979.  However, it is obvious that any preexisting problems 
 
            were not greatly disabling, or such heavy work would not 
 
            have been possible.  Claimant was under no medical 
 
            restrictions whatsoever.
 
            
 
                 On July 3, 1989, claimant was injured when he slipped 
 
            on a piece of fat while pulling the bone cart.  Mr. Blair 
 
            was off work for two to three weeks for physical therapy, 
 
            but eventually returned to the same job with no medical 
 
            restrictions.
 
            
 
                 Claimant was able to perform his regular job without 
 
            problems for over a year.  On August 7, 1990, he complained 
 
            of back pain of one month's duration and was taken off work 
 
            by his family physician, Dr. Rosemary Mason.
 
            
 
                 Dr. Mason's chart notes of August 8, 1990 reflect 
 
            complaints of lower back pains with a "pinching" in the 
 
            lower back for the last month, almost every day.  Dr. Mason 
 
            recommended that claimant "probably needs to get a different 
 
            job where he is not involved in as much heavy lifting," and 
 
            referred him to Daniel J. Larose, M.D., an orthopedic 
 
            specialist.  Dr. Larose diagnosed chronic low back pain with 
 
            early degenerative changes, reporting x-ray evidence of 
 
            sclerosis at the L4-5 and L5-S1 facets.  Dr. Larose also 
 
            recommended a work reassignment with decreased weight 
 
            lifting to "see how he does."
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 As a result, claimant was disqualified from his pack 
 
            off job.  Claimant subsequently worked a light duty job, 
 
            then a "mule" job until he was terminated in May 1993.  
 
            These jobs entailed fewer overtime hours than the pack off 
 
            job.  Average wages dropped from approximately $24,000.00 
 
            annually to $19,000.00 annually in 1991 and 1992.  However, 
 
            claimant greatly increased his farming operation during 
 
            these years.
 
            
 
                 Claimant was discharged when he called in ill, then was 
 
            observed working in his corn crib.  Defendants' exhibit F is 
 
            the written statement of Robert Jacobi dated July 8, 1993.  
 
            Mr. Jacobi, apparently a neighbor, alleged that claimant 
 
            worked for approximately six hours shelling corn, some 4,000 
 
            bushels, on the day he called in sick, all the while 
 
            "bragging" that he could draw packing plant wages while 
 
            doing his farm work.  Jacobi adds that claimant reported 
 
            Farmland "tried to terminate him" once before, but that the 
 
            union got him back on.  In fact, claimant was discharged in 
 
            November 1991 in the wage of similar allegations, but 
 
            reinstated in February 1992.  This, of course, also explains 
 
            part of claimant's drop in earnings during those two years.
 
            
 
                 Although Jacobi's statement is hearsay, and thus 
 
            subject to many of the intrinsic weakness which are the 
 
            basic grounds for the general rule excluding it in civil 
 
            litigation, Delong v. Highway Commission, 229 Iowa 700, 295 
 
            N.W.2d 91 (1940), it is noted that claimant offers no reason 
 
            why Jacobi was not deposed or subpoenaed so as to subject 
 
            such a damaging accusation to cross-examination.  Jacobi's 
 
            statement is also bolstered by the fact of claimant's 
 
            previous discharge on similar grounds, and the fact that 
 
            Jacobi was even aware of it.
 
            
 
                 Although claimant testified that he claimed and 
 
            received job insurance benefits, no decision was offered 
 
            into evidence.  It is unclear whether a contested case under 
 
            chapter 17A was actually commenced (this stage is on appeal 
 
            to an administrative law judge), or what was the basis of 
 
            the Job Service determination.  For example, Farmland Foods 
 
            may have filed an untimely protest or appeal.  Absent better 
 
            evidence as to the nature of the Job Service determination, 
 
            it is inappropriate to give that determination preclusive 
 
            effect. 
 
            
 
                 It is found that claimant's discharge was not based on 
 
            the claimed work injuries of 1989 or 1990.
 
            
 
                 Claimant was most recently seen for evaluation by Anil 
 
            K. Agarwal, M.D., an orthopedic surgeon.  Dr. Agarwal saw 
 
            claimant on September 22, 1993, and reported an inability to 
 
            define objective signs of injury.  Nonetheless, Dr. Agarwal 
 
            rated impairment at two percent of the body as a whole based 
 
            on subjective complaints of chronic symptomatology.  
 
            Previous agency experience indicates this is a generous 
 
            rating.  Dr. Agarwal also felt no specific restrictions 
 
            needed to be imposed and recommended that claimant return to 
 
            any activities within his tolerance.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980);  Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 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.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 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. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Claimant was restored to his regular job without 
 
            medical restriction following the 1989 incident.  The 
 
            evidence does not show he sustained permanent disability 
 
            resulting from that incident, which temporarily aggravated 
 
            his preexisting condition.
 
            
 
                 The 1990 claim is based on a theory of cumulative 
 
            injury.  The fact that Drs. Mason and Larose took claimant 
 
            off work and recommended lighter duty employment tends to 
 
            show that claimant's heavy work tended to at least light up 
 
            or aggravate his previous condition.  Dr. Agarwal rated 
 
            impairment (based only on subjective complaints), but did 
 
            not attribute his rating to either claimed injury, the 
 
            preexisting condition, or a back injury claimant sustained 
 
            in a motor vehicle accident in December 1992.  Although 
 
            minimal, this evidence does meet claimant's burden of proof 
 
            in establishing a causal nexus between the 1990 cumulative 
 
            injury and claimant's loss of actual income when he was 
 
            disqualified from the pack off job.
 
            
 
                 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.
 
            
 
                 The most recent physician to see claimant found no 
 
            objective sign of injury and imposed no medical 
 
            restrictions.  Absent medical restriction, there is no 
 
            apparent damage to claimant's future earning capacity.  
 
            However, claimant is entitled to an award of permanent 
 
            disability because of his lost wages (in the vicinity of 
 
            $10,000) in 1991 and 1992, due to his reduced ability to 
 
            work overtime after disqualification from the pack off job.
 
            
 
                 Considering these factors in specific and the record 
 
            otherwise in general, it is held that claimant has sustained 
 
            industrial disability equivalent to 6.6 percent of the body 
 
            as a whole, or 33.35 weeks.
 
            
 
                 It remains to determine the commencement date for those 
 
            benefits.  The record is unclear as to how many days 
 
            claimant missed after the 1990 injury, but it is noted that 
 
            the parties stipulated to a credit of $171.15.  Based on the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            stipulated rate of $291.52, this is equivalent to healing 
 
            period of four days.  Accordingly, benefits shall be awarded 
 
            commencing August 12, 1990.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 922006:
 
            
 
                    Claimant takes nothing.
 
            
 
                 In file number 963033:
 
            
 
                    Defendants shall pay thirty-three point 
 
                    three five (33.35) weeks of permanent 
 
                    partial disability benefits at the rate of 
 
                    two hundred ninety-nine and 74/100 dollars 
 
                    ($299.74) commencing August 12, 1990.
 
            
 
                    As all benefits have accrued, they shall be 
 
                    paid in a lump sum together with statutory 
 
                    interest.
 
            
 
                    Defendants shall file a claim activity 
 
                    report upon compliance with this order.
 
            
 
                    Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Dennis M McElwain
 
            Attorney at Law
 
            632-640 Badgerow Building
 
            PO Box 1194
 
            Sioux City Iowa 51102
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            
 
                    
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2906; 1803
 
                                               Filed April 11, 1994
 
                                               DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES A. BLAIR,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 963033
 
                                          :                922006
 
            FARMLAND FOODS, INC.,         :
 
                                              A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA LIFE & CASUALTY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
            2906
 
            Where prehearing conference report did not identify "arising 
 
            out of", defendants were not permitted to contest the issue 
 
            at hearing.
 
            
 
            1803
 
            Claimant eventually was found by evaluating physician to 
 
            have no permanent restrictions, but was awarded 6.67 percent 
 
            industrial disability where he lost overtime due to 
 
            disqualification from regular bid job.
 
            Claimant's discharge - for calling in sick while performing 
 
            heavy work on his farm operation - was not related to either 
 
            work injury, and did not increase award.  Job Service 
 
            determination was not given preclusive effect where evidence 
 
            did not specify the nature or level of the determination.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            PATRICK SHAVER, by & through    
 
            Donna Shaver, surviving spouse &         File No. 922027
 
            administrator of the estate of  
 
            Patrick L. Shaver,                     M E M O R A N D U M
 
                        
 
                 Claimant,                        O F   D E C I S I O N
 
                 
 
            vs.                                   O N   E X P E D I T E D
 
                        
 
            BRINGMAN BROTHERS,                      P R O C E E D I N G
 
                        
 
                 Employer,   
 
                        
 
            and         
 
                        
 
            INSURANCE COMPANY OF NORTH      
 
            AMERICA,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ___________________________________________________________
 
            
 
            An original notice and petition for expedited procedure was 
 
            filed on September 9, 1993.  On November 10, 1993, a 
 
            telephonic hearing was held on this petition.
 
            The only issue submitted resolves all disputes among the 
 
            parties.  This issue concerned the actual dependency of 
 
            Angela Wilson and her full time status as a student in the 
 
            court reporter program at the American Institute of 
 
            Business.  The entire hearing was recorded by audio tape.  A 
 
            detailed decision was dictated into the record immediately 
 
            after the hearing and will not be reproduced in typewritten 
 
            form unless there is an appeal by the parties at which time 
 
            the procedures under the administrative code are to be 
 
            followed.  Any rights of appeal will run from the date of 
 
            the decision dictated into the record, namely November 10, 
 
            1993, and this memorandum is solely for the purpose of the 
 
            agency file.
 
            On November 10, 1993 the undersigned deputy ordered that 
 
            payments resume under the apportionment order filed April 4, 
 
            1990 to Angela Wilson until she completes or drops out of 
 
            the court reporter program at AIB or is emancipated by 
 
            marriage, full time employment or otherwise and that she be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            paid in a lump sum all unpaid weekly benefits since her 
 
            enrollment in the fall of 1990.
 
            
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street, STE 200
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Daryl L. Hecht
 
            Attorney at Law
 
            614 Pierce Street
 
            P O Box 27
 
            Sioux City, Iowa  51102
 
            
 
            Mr. P. D. Furlong
 
            Attorney at Law
 
            520 Nebraska Street, STE 401
 
            P O Box 3005
 
            Sioux City, Iowa  51102