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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL A. TREANOR,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 926687
 
            CURRIES MANUFACTURING         :
 
            COMPANY,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On April 13, 1990, Michael A. Treanor (claimant) filed 
 
            a petition for arbitration as a result of an injury to 
 
            claimant's neck occurring on April 25, 1989.  Curries 
 
            Manufacturing Company (Curries) was identified as employer 
 
            and Wausau Insurance Company (Wausau) was identified as the 
 
            workers' compensation insurer for Curries (collectively 
 
            defendants).  On May 21, 1991, these matters came on for 
 
            hearing in Mason City, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel, Robert 
 
            S. Kinsey III of Mason City, Iowa and Curries and Wausau and 
 
            by their counsel Marvin Duckworth of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, Valerie 
 
            Traenor, Mark Evers, Dennis Robinette, and David Mitchell.  
 
            
 
                 2.  Claimant's exhibits 1-38, 40, 42, and 43.
 
            
 
                 3.  Defendants' exhibit A, B, R, S, and T.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained an injury on April 25, 1989, 
 
            which arose out of and in the course of employment.
 
            
 
                 c.  The alleged injury is a cause of temporary 
 
            disability.
 
            
 
                 d.  The alleged injury caused a permanent disability.
 

 
            
 
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                 e.  The time off work is stipulated to be September 6, 
 
            1989 to April 16, 1990.
 
            
 
                 f.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 g.  The rate of compensation, in the event of an award, 
 
            is $177.57 per week based on a weekly gross wage of $264.00. 
 
            Claimant is married and has one child.  He is entitled to 
 
            three exemptions.
 
            
 
                 h.  Defendants have paid 85.7142 weeks of workers' 
 
            compensation benefits to claimant at the rate of $177.57 per 
 
            week prior to hearing and are claiming a credit for those 
 
            benefits paid.
 
            
 
                                      Issues
 
            
 
                 The issues for resolution are as follows:
 
            
 
                 1.  The nature and extent of any entitlement to 
 
            benefits for claimant's injury.
 
            
 
                 2.  Whether claimant is entitled to vocational 
 
            rehabilitation benefits pursuant to Iowa Code section 85.70 
 
            (1991).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was 39 years 
 
            old.  Claimant is a high school graduate.  After high 
 
            school, he obtained on-the-job training as an ironworker.  
 
            He was trained to use a cutting torch, perform welding and 
 
            use the various tools of the trade for an ironworker.  
 
            Claimant does not have a formal certificate as a welder but, 
 
            he was a member of the ironworkers' union.  Additionally, 
 
            claimant has taken certification training for a school bus 
 
            driver.  Claimant has no other formal education.
 
            
 
                 2.  Claimant also has experience as a railroad worker 
 
            and as a construction worker.  Claimant's wages for these 
 
            positions ranged between $4.00 and $5.00 per hour.  
 
            Thereafter, claimant worked as an ironworker in a variety of 
 
            employments.  Iron work can be characterized as heavy 
 
            strenuous work which required lifting regularly in excess of 
 
            50 pounds.   His pay during this time period ranged from 
 
            $7.00 per hour to $12.00 to $13.00 per hour.  Claimant's 
 
            work was seasonal.  He generally worked in northern Iowa 
 
            from his home base in Mason City.
 
            
 
                 3.  In January of 1981, while claimant was working for 
 
            Youngs Sales, he lifted a piece of steel and injured his 
 
            back.  The injury resulted in two back surgeries, during 
 
            1984.  Prior to the back surgeries, claimant had back 
 

 
            
 
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            problems which were documented in his medical records from 
 
            1974 and 1981.  Claimant filed a workers' compensation claim 
 
            against Youngs Sales and was eventually resolved by way of a 
 
            Special Case Settlement that became final December 17, 1985.
 
            
 
                 4.  As a result of claimant's back injury and 
 
            subsequent surgeries, claimant was assigned a functional 
 
            impairment rating that ranged between 20-37 percent.  
 
            Additionally, claimant's treating physician imposed 
 
            permanent restrictions on claimant which included bending, 
 
            stooping, lifting, reaching or twisting.  Additionally, 
 
            claimant was limited to lifting no more than 50 pounds.  
 
            Because of these restrictions, claimant was prevented from 
 
            returning to his previous work as an ironworker.
 
            
 
                 5.  After claimant obtained his settlement, claimant 
 
            went into the cleaning business.  Claimant started his own 
 
            company which provided building maintenance services on a 
 
            year round basis and snow removal during the winter time.  
 
            While claimant was working in his cleaning business and 
 
            doing snow removal work, he believed that he was staying 
 
            within the restrictions that had been imposed as a result of 
 
            his back surgeries in 1984.
 
            
 
                 6.  Financially, claimant's business did not produce a 
 
            significant income for him.  In 1986, claimant earned 
 
            $13,700 and in 1987 claimant earned $12,900.  In 1988, 
 
            claimant's cleaning service earned only $8,500.  During that 
 
            year, claimant lost two significant contracts.  The downturn 
 
            continued to the point where claimant only earned $3,700 
 
            from his work from his self-employment cleaning work.  
 
            Cliamant closed his cleaning business when he was hired by 
 
            Curries in April of 1989.  
 
            
 
                 7.  Curries Manufacturing builds steel doors and window 
 
            frames for industrial and residential use.  Claimant was 
 
            hired as a temporary employee.  He began in the maintenance 
 
            department but was subsequently moved to the door line.  At 
 
            the time of his hire, claimant did not reveal that he had 
 
            had two prior back surgeries or that he had restrictions 
 
            which would have prevented him from doing heavy lifting in 
 
            the plant.  After claimant was hired, and moved to the door 
 
            line, claimant did not advise his supervisors that doing 
 
            this type of work would have exceeded his restrictions.  
 
            Claimant did not reveal his lifting restrictions because he 
 
            was afraid that he would be laid off.
 
            
 
                 8.  When claimant was moved to the door line, claimant 
 
            was required to remove doors from an assembly line.  He and 
 
            a coworker would lift the door and carry it out of the 
 
            assembly area after another worker had removed the door from 
 
            a chain up above.  Generally the doors would range in weight 
 
            from 30 pounds to 200 pounds.  Claimant was required to 
 
            carry a weight averaging about 100 pounds on his shoulder on 
 
            one side.
 
            
 
                 9.  After claimant had been working on the door line 
 
            for a period of time, claimant developed pain in his neck.  
 
            As he worked the pain increased.  Claimant advised his 
 
            supervisor and then reported to the company nurse that he 
 

 
            
 
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            had increasing neck pain.  Claimant was then referred to the 
 
            company doctor, Jerrold White, M.D.  Dr. White examined 
 
            claimant and found that he had a neck strain.  Dr. White 
 
            prescribed medication and took claimant off work.  
 
            Claimant's pain improved, and he was returned to work to 
 
            light duty.  Claimant was examined again on May 1, 1989.  He 
 
            reported that he had some stiffness but did not have any 
 
            pain going into his shoulder or arm.  Upon examination, Dr. 
 
            White found that he had mild degenerative changes at C6-C7 
 
            with a mild narrowing of the C4-C5 disc.  There also 
 
            appeared to be minimal encroachment on the left side at 
 
            C6-C7 accompanied by some spurring.  Claimant was then 
 
            continued on light duty work after this examination.
 
            
 
                 10.  On May 8, 1989, Dr. White released claimant to 
 
            return to his regular duties at Curries.  Dr. White did not 
 
            impose a lifting limit on cliamant.  Claimant was limited to 
 
            work where he was not required to lift or carry 
 
            predominantly with one arm or oneside for as least two 
 
            weeks.  Thereafter, claimant sought no medical treatment for 
 
            his neck until September 5, 1989.
 
            
 
                 11.  Claimant was seen in September by Dr. White.  He 
 
            reported that he had persistent neck pain that had not 
 
            resolved from the incident in April.  Claimant reported that 
 
            he had no intervening injury or exacerbation between May and 
 
            September.  Dr. White found that claimant was suffering from 
 
            mild degenerative disease of the neck with possible muscle 
 
            strain or radiculitis symptoms.  Dr. White took claimant off 
 
            work again and scheduled him for physical therapy.  Upon 
 
            follow-up, Dr. White concluded that the two weeks of 
 
            physical therapy had provided no improvement to claimant.  
 
            Consequently, claimant was directed to continue physical 
 
            therapy but he was also scheduled to see E. A. Crowell, 
 
            M.D., for a consultation.  
 
            
 
                 12.  Dr. Crowell examined claimant later in September 
 
            and concluded that claimant's neck shows mild degenerative 
 
            changes.  along with a small ruptured disc at C5-6 with 
 
            symptoms down the lateral side of the upper arm and numbness 
 
            and tingling in the hand.  He concluded that claimant would 
 
            require a neurosurgical evaluation to fully diagnose his 
 
            problem.  
 
            
 
                 13.  Claimant was next seen by by David W. Beck, M.D., 
 
            a neurosurgeon in Mason City.  Dr. Beck concluded upon 
 
            examination that claimant had a large disc herniation at 
 
            C5-6.  The disc material was displacing the spinal cord off 
 
            to the left side and was causing most of claimant's 
 
            symptoms.  At that juncture, Dr. Beck recommended surgical 
 
            decompression to repair the herniation disc.  
 
            
 
                 14.  Claimant was seem next by Steven R. Adelman, M.D., 
 
            for an evaluation of his neck condition. Dr. Adelman also 
 
            found a fairly large C5-6 herniated disc extending to the 
 
            left.  Dr. Adleman also recommended surgical decompression 
 
            to resolve claimant's neck pain.
 
            
 
                 15.  Dr. Beck performed an anterior cervical diskectomy 
 
            and fusion at C5-6 on November 28, 1989.  During surgery, 
 

 
            
 
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            Dr. Beck found several large fragments of disc with which 
 
            were indenting the posterior longitudinal ligament in 
 
            claimant's neck at C5-6.  
 
            
 
                 16.  Claimant had an unremarkable recovery.  He began a 
 
            work hardening program at the end of January to regain range 
 
            of motion in his neck.  This course of treatment continued 
 
            until March 5, 1990.  During therapy, claimant experienced 
 
            pain in his low back.  At the conclusion of the work 
 
            hardening program, claimant's pain symptoms had improved 
 
            somewhat in the neck and lower extremity.    Additionally, 
 
            claimant had a final lift-carry, push-pull for job 
 
            simulations of 20 pounds for 12 inches to the waist, and 30 
 
            pounds for knuckle to shoulder.  Claimant was able to push 
 
            and pull a sled with 85 pounds plus on it.  After March 5, 
 
            1990, claimant was released to continue with his own 
 
            exercise activities and to maintain his present conditioning 
 
            level.  Dr. Beck also released claimant on March 5, 1990.  
 
            Claimant was taking no medication at the time of his 
 
            release.
 
            
 
                 17.  During the course of this therapy, claimant had 
 
            been terminated by Curries.  Curries indicated that they had 
 
            no job within claimant's restrictions that would allow him 
 
            to return to his job at Curries.  
 
            
 
                 18.  At time Dr. Beck released claimant he also 
 
            assigned cliamant a permanent functional impairment of 
 
            twelve percent as the result of the work injury sustained on 
 
            April 25, 1989.  Dr. Beck based his rating on the nature of 
 
            claimant's surgery and ongoing pain complaints.
 
            
 
                 19.  On April 16, 1990, Dr. Beck wrote another letter 
 
            which indicated that claimant was released to work at that 
 
            time.  His work restrictions included no lifting over head 
 
            and avoidance of repetitive motion of his neck.  Dr. Beck 
 
            indicated that the letter would be effective on April 16, 
 
            1990.
 
            
 
                 20.  In May of 1990, claimant filed for unemployment 
 
            benefits after his termination from Curries.  Claimant 
 
            thereafter made the requisite contacts for job required to 
 
            maintain his unemployment benefits.  Claimant made contacts 
 
            during the period that he received unemployment compensation 
 
            from May 1, 1990 to June 21, 1990. 
 
            
 
                 21.  After claimant was released to return to work, 
 
            Curries and Wausau retained the services of General 
 
            Rehabilitation Services to provide vocational evaluation and 
 
            placement for claimant.  First contact was made by Rebecca 
 
            Parkins on May 2, 1990.  In a report dated June 5, 1990, Ms. 
 
            Parkins concluded that claimant had adequate transferrable 
 
            skills for direct placement which included but were not 
 
            limited to supervisory positions, welder, hospital 
 
            maintenance, car wash supervisor, cutter and edge grinder.  
 
            Claimant demonstrated other transferrable skills in craft 
 
            technology, mechanical work, industrial work and small 
 
            business management.  Finally, claimant has managed rental 
 
            property.  These past experiences, suggest that claimant has 
 
            a mixed history of physical labor and more sedentary type 
 

 
            
 
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            skills.  
 
            
 
                 22.  On June 1, 1990, claimant was notified by the 
 
            Social Security Administration that he was not entitled to 
 
            disability benefits based on the claim that he had filed.  
 
            Social Security found that claimant would have difficulties 
 
            in returning his past forms of work but in light of his age, 
 
            education and overall remaining ability, claimant was 
 
            capable of performing less strenuous work.  Consequently, 
 
            benefits were denied.
 
            
 
                 23.  David Mitchell was subsequently assigned to this 
 
            file after Ms. Parkins left General Rehabilitation Services 
 
            on maternity leave.  On July 25, 1990, David Mitchell 
 
            designed a plan to obtain placement for claimant.  General 
 
            Rehabilitation Services made contact with Curries regarding 
 
            work at the plant.  However, Curries would not rehire 
 
            claimant.  It requested a cost benefit analysis from the 
 
            carrier to aid them in making the decision as to whether the 
 
            claimant should be rehired.  
 
            
 
                 24.  On July 19, 1990, Paula Ludewig prepared a 
 
            functional capacity evaluation for claimant which included 
 
            some guidelines for job activities.  The quality of the copy 
 
            of claimant's exhibit 29 is not good and some of the values 
 
            are impossible to read.  However, those which are legible 
 
            indicates that claimant should avoid pushing and pulling 
 
            anything in excess of 50 pounds, and that he should avoid 
 
            bending, twisting, and working overhead.  
 
            
 
                 25.  Claimant had a subsequent functional capacity 
 
            evaluation performed July 26, 1990, by M. Davenport.  This 
 
            evaluation concluded that as of that date, claimant was able 
 
            to perform job classified as medium heavy to heavy as 
 
            defined by the Dictionary of Occupational Titles.  The 
 
            evaluator concluded that claimant could perform occasional 
 
            lifting of between 75-100 pounds, frequent lifting of 35-50 
 
            pounds and constant lifting of 15-20 pounds.  (Claimant 
 
            Exhibit 31).
 
            
 
                 26.  On August 3, 1990, Dr. Beck reiterated his 
 
            conclusions regarding claimant's permanent functional 
 
            impairment.  He again indicated that claimant had a twelve 
 
            percent permanent functional impairment that is within a 
 
            reasonable degree of medical certainty due to a work related 
 
            injury at Curries Manufacturing.  He went on to note that 
 
            claimant's current restrictions include avoiding work that 
 
            requires repetitive motion of his neck.  Claimant was also 
 
            to avoid lifting overhead.  Dr. Beck noted that these 
 
            restrictions were to be continued indefinitely.
 
            
 
                 27. A progress report was submitted to Wausau on August 
 
            13, 1990.  After the functional evaluation had been 
 
            completed, claimant advised David Mitchell that he was 
 
            planning to become a small business owner by September 1, 
 
            1990.  At that juncture, the business appeared to offer good 
 
            potential for the future and claimant was excited about the 
 
            opportunity of working for himself again.  Claimant had 
 
            applied but had been turned down for a job with the Mason 
 
            City airport.  Other leads were shared with claimant which 
 

 
            
 
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            included an inventory control clerk position with Frozen 
 
            Foods Plus, a cook position with the Park Inn, a sales 
 
            position with Western Auto, and a maintenance position with 
 
            Larry's Wrecker Service.  Claimant concluded that he did not 
 
            need to pursue these job leads since he was going to pursue 
 
            self employment.  As a consequence of the decision to become 
 
            the owner of a tavern, the vocational rehabilitation 
 
            services were discontinued.
 
            
 
                 28.  Claimant continued to experience neck and headache 
 
            pain after Dr. Beck's last correspondence regarding his 
 
            permanent functional impairment.  As a result of the 
 
            continuing reports of pain and headaches, Dr. Beck suggested 
 
            that claimant have another MRI in November 1990.  The result 
 
            of the MRI was negative.  The fusion was solid and Dr. Beck 
 
            prescribed new pain medication for claimant to resolve his 
 
            pain problems.
 
            
 
                 29.  Claimant was evaluated March 25, 1991 by Robert A. 
 
            Hayne, M.D.  The evaluation was requested by Curries and 
 
            Wausau.  Dr. Hayne concluded that claimant's symptoms dated 
 
            from the mid portion of April of 1989 and were precipitated 
 
            by a strain on the neck and shoulder regions incident to 
 
            carrying steel doors at Curries.  Dr. Hayne found that 
 
            claimant had not experienced pain in the left upper 
 
            extremity immediately but there was disruption of the 
 
            intervertebral disc and two or three weeks later the 
 
            protrusion was sufficiently severe to cause nerve root 
 
            impingement with pain in the left upper extremity.  Dr. 
 
            Hayne went on to conclude that the persistence of pain in 
 
            the neck and in the left upper extremity, suggests that 
 
            there may be some encroachment of the neural foramen at the 
 
            C6/7 level on the left side with this encroachment seen on 
 
            the plain x-rays of the neck as well as the MRI study which 
 
            was made in December of 1990.  Based on these findings, Dr. 
 
            Hayne found that claimant's functional impairment had 
 
            increased over that which had been assigned by Dr. Beck.  
 
            Dr. Hayne felt that claimant had a functional impairment of 
 
            20 percent to the neck.
 
            
 
                 30.  At the time of claimant's injury he was earning 
 
            $6.19.  When he returned to light duty, claimant's hourly 
 
            wage was $5.64.  Claimant received a wage increase in this 
 
            position on July 6, 1989 to $6.59 per hour.  Claimant was 
 
            earning this wage when he left Curries.  
 
            
 
                 31.  The subsequent failure of claimant's small 
 
            business venture generated one last report from David 
 
            Mitchell at General Rehabilitation Services.  In that 
 
            report, he concluded that there were jobs available in the 
 
            Mason City area and in the service delivery area around 
 
            Mason City that would be suitable for claimant with his job 
 
            restrictions.  Mr. Mitchell noted that approximately 25 
 
            employers had been contacted with openings that would 
 
            accommodate claimant's restrictions.  The jobs ranged from 
 
            route delivery to maintenance work.  Additionally, there 
 
            were over-the-road truck driving positions listed as 
 
            claimant had indicated an interest in pursuing this type of 
 
            a career.  The average wage for these positions ranged from 
 
            between $4.42 as a fast foot manager trainee to $10.09 as a 
 

 
            
 
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            sales representative.  The average wage anticipated in many 
 
            of these jobs was $7.04 per hour.  Mr. Mitchell also noted 
 
            that occupational projections for the Mason City area 
 
            included a variety of positions that would be within 
 
            claimant's restrictions for 1990-91.  However, at the type 
 
            of hearing, claimant had not been able to locate new 
 
            employment. 
 
            
 
                 32.  Claimant was motivated to find employment after he 
 
            had been released to return to work.  He has retraining 
 
            potential in light of his age and educational background.  
 
            Claimant has applied at a variety of locations but these 
 
            employers indicated that there were no openings and for the 
 
            most part some of these employers were not accepting any 
 
            applications.  Claimant had also applied for positions with 
 
            Principal Financial Group, with the Mason City School 
 
            District as a bus driver, and as a custodian in the Ventura 
 
            School District.  Claimant has concluded that his best 
 
            option for the future is to return to school so that he can 
 
            obtain a job with benefits.
 
            
 
                 33.  At the time of the hearing, claimant continued to 
 
            report neck pain, and intermittent shoulder pain.  He is on 
 
            no prescription medication but continues to take Ibuprofen 
 
            and aspirin for his headache and left shoulder pain.  
 
            Claimant is not taking any medication for his low back.  
 
            Claimant has limited his gardening activities and his 
 
            household activities.  Claimant uses a riding mower and a 
 
            snow blower to take care of lawn and maintenance work in the 
 
            summer and winter.  Claimant has been able to do some 
 
            hobbies but has not been able to go hunting.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  The nature and extent of any entitlement to 
 
            benefits, for claimant's injury.
 
            
 
                 Since the parties have already stipulated that 
 
            claimant's injury caused both a temporary and permanent 
 
            disability, the only remaining question is the nature and 
 
            extent of claimant's industrial loss stemming from of his 
 
            neck injury.  This question is colored by the fact that 
 
            claimant had a prior injury to his back that resulted in a 
 
            functional impairment of between 12 percent to 37 percent 
 
            and permanent restrictions.  Claimant was also compelled to 
 
            abandon iron work due to his restrictions.  Claimant became 
 
            self employed after the injury at a wage below his earnings 
 
            as an iron worker.  Claimant suffered a loss of earing 
 
            capacity from this injury.  Consequently, the secondary 
 
            question in this analysis becomes whether the first injury 
 
            must be apportioned out of claimant's total industrial 
 
            disability resulting from the neck injury.  Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Iowa 1991); Tussing v. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984). 
 
            
 
                 A recent decision of the Industrial Commissioner is 
 
            instructive.  In Denekas v. Aalfs Manufacturing Co., File 
 
            Nos. 794353 and 823077 , Slip op. (Iowa Ind. Comm'r App. 
 
            December 31, 1991), the Commissioner held that to be 
 

 
            
 
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            apportionable, the same body part must be involved.  If the 
 
            claimant had a prior injury to the knee and then a 
 
            subsequent injury to the knee, then the apportionment rules 
 
            set out in Varied Industries, Tussing and Bearce would be 
 
            applicable.  If the injury was not the same body part, then 
 
            apportionment would not be appropriate.  
 
            
 
                 In keeping with the Commissioner's Denekas decision, 
 
            there can be no apportionment in claimant's case because he 
 
            did not suffer injuries to the same body parts.  The first 
 
            injury was to his back and resulted in two surgeries and 
 
            significant restrictions.  Claimant's second injury was to 
 
            his neck and caused a distinct injury to that part of his 
 
            body.  Consequently, apportionment would not be appropriate 
 
            in this instance.
 
            
 
                 Where claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal person.  The essence 
 
            of an earning capacity inquiry then, is not how much has the 
 
            claimant been functionally impaired, but whether that 
 
            impairment, in combination with the claimant's age, 
 
            education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within his restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 Several factors bear on claimant's industrial loss.  
 
            Claimant is relatively young.  His industrial disability is 
 
            not as serious as it would be for an older employee. Mccoy 
 
            v. Donaldson Company, Inc., 1 IWAC Decisions of the Iowa 
 
            Industrial Commissioner 400, 405 (Appeal 1989); Walton v. B 
 
            & H Tank Corp., II Iowa Industrial Commissioner Report 426, 
 
            429 (Arb. 1981); Becke v. Turner-Busch, Inc., 34 Biennial 
 
            Report Iowa Industrial Commissioner 34, 36 (Appeal 1979).  
 
            Claimant is capable of being retrained.  He has shown that 
 
            he has the capacity to reenter the formal educational system 
 
            and learn new skills.  Claimant has transferable skills and 
 
            has demonstrated that he can successfully operate his own 
 

 
            
 
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            businesses.  Even though claimant has been concerned about 
 
            local economic conditions in the Mason City area, these 
 
            concerns affect all workers equally and is not a factor in 
 
            determining industrial disability.  Webb v. Lovejoy 
 
            Construction Company, II Iowa Industrial Commissioner Report 
 
            430 (Appeal Decision 1984).  Claimant is foreclosed from 
 
            heavy physical labor, but these restrictions were in place 
 
            prior to this injury.  Claimant is still able to perform 
 
            medium to light work.
 
            
 
                 However, claimant has suffered a significant loss due 
 
            to the injury in his neck.  Claimant has a 20 percent 
 
            impairment from the neck injury.  Claimant has significant 
 
            restrictions.  Claimant has attempted to find work 
 
            identified by the vocational rehabilitation specialists to 
 
            no avail.  Curries did not re-employ claimant.  The 
 
            employer's inability to find any employment for claimant 
 
            indicates that claimant has sustained a substantial 
 
            disability.  Sunbeam Corp v. Bates, 609 S.W.2d 102, (Ark. 
 
            App. 1980); Army & Air Force Exchange Service v. Neuman, 278 
 
            Fed. Supp. 865, (W.D. La. 1967); Leonardo v. Uncas 
 
            Manufacturing Co., 75 A.2d 188, (R.I. 1950).  It is 
 
            inconsistent for the employer to argue that claimant' 
 
            disability is only slight when it has absolutely no work 
 
            which the claimant can do.  2 Larson, Workman's 
 
            Compensation, Section 57.61(b) at 10-173, 10-176 (1992).
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            45 percent industrial disability.  
 
            
 
                 Claimant is also entitled to healing period benefits.  
 
            The parties have agreed to this entitlement.  The only 
 
            question is the date healing period benefits ended and 
 
            permanency benefits commenced.  Healing period benefits may 
 
            be characterized as that period during which there is a 
 
            reasonable expectation of improvement of a disabling 
 
            condition and ends when maximum medical improvement is 
 
            reached. Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 
 
            60, 65 (Iowa Ct. App. 1981).  In discussing the concept of 
 
            healing period as contemplated by Iowa Code section 85.34(1) 
 
            (1991) the Kubli Court observed that recuperation refers to 
 
            that condition in which healing is complete and the extent 
 
            of the disability can be determined. Kubli, 312 N.W.2d at 
 
            65.  The healing period generally terminates at the time the 
 
            attending physician determines that the employee has 
 
            recovered as far as possible from the effects of the injury. 
 
            Kubli, 312 N.W.2d at 65.  When a permanent rating is given, 
 
            it indicates that the physician does not expect the claimant 
 
            to improve and this conclusion meets the criteria of Iowa 
 
            Code section 85.34(1) and Thomas v. William Knudson & Sons, 
 
            Inc., 349 N.W.2d 124, 126 (Iowa App. 1984).  
 
            
 
                 Claimant received a rating in this case on March 5, 
 
            1990 from Dr. Beck.  Dr. Beck also indicated that claimant 
 
            could return to see him on an as needed basis.  Dr. Beck 
 
            provided no other care for claimant after March 5, 1990 even 
 
            though he did not release claimant to return to work until 
 
            April 16, 1990.  Claimant made no showing that he was 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            continuing to recuperate during the period of time between 
 
            March 5, 1990 and April 16, 1990.  Consequently, claimant's 
 
            healing period ended on March 5, 1990 and his permanency 
 
            commenced on March 6, 1990.
 
            
 
                 2.  Whether Claimant is entitled to vocational 
 
            rehabilitation benefits pursuant to Iowa Code section 85.70 
 
            (1991).
 
            
 
                 The claimant also urges that he is entitled to 
 
            vocational rehabilitation benefits pursuant to Iowa Code 
 
            section 85.70 (1991).  Defendants contend that he is not 
 
            entitled to such benefits.
 
            
 
                 Iowa Code section 85.70 (1991) provides that claimant 
 
            is entitled to vocational rehabilitation payments under this 
 
            provision upon a showing that claimant is actively 
 
            participating in a vocational rehabilitation program 
 
            recognized by the state board for vocational education.  
 
            
 
                 Claimant has made no such showing in this case.  
 
            Claimant testified that he is not participating in any 
 
            program or course of study at the time of the hearing.  He 
 
            was not enrolled in any educational or vocational training 
 
            program that had been approved by the state board for 
 
            vocational education.  Without more, the claimant is not 
 
            entitled to these benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Curries and Wausau shall pay to claimant healing 
 
            period benefits for the period of time beginning on 
 
            September 6, 1989 and ending on March 5, 1990 at the rate of 
 
            one hundred seventy- seven and 57/100 dollars ($177.57).  As 
 
            these benefits have accrued, they shall be paid in a lump 
 
            sum together with statutory interest thereon pursuant to 
 
            Iowa Code section 85.30 (1991).
 
            
 
                 2.  Curries and Wausau shall pay to claimant permanent 
 
            partial disability benefits for an injury to claimant's neck 
 
            in the amount of forty-five percent (45%) at the rate of one 
 
            hundred seventy- seven and 57/100 dollars ($177.57) with 
 
            payment commencing on March 6, 1990.  As these benefits have 
 
            accrued, they shall be paid in a lump sum together with 
 
            statutory interest thereon pursuant to Iowa Code section 
 
            85.30 (1991).
 
            
 
                 3.  Curries and Wausau shall have a credit in the 
 
            amount of eighty-five point seven one four two (85.7142) 
 
            weeks at the rate of one hundred seventy-seven and 57/100 
 
            dollars ($177.57) against any amounts owed.  
 
            
 
                 4.  The costs of this action shall be assessed to 
 
            Curries and Wausau pursuant to rule 343 IAC 4.33.
 
            
 
                 5.  Claimant's request for vocational rehabilitation 
 
            benefits is denied.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 6.  Curries and Wausau shall file claim activity 
 
            reports as required by rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of February 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            PO Box 679
 
            Mason City Iowa 50401
 
            
 
            Mr Marvin E Duckworth
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
         
 
       
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JIMMY B. CHRISTENSEN,         :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 926899
 
         POCKET LOUNGE, INC.,          :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         UNITED FIRE AND CASUALTY CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
               I.  Did the deputy industrial commissioner err in not 
 
              finding that the claimant was engaged in "horseplay" at 
 
              the time of the incident in question thereby finding 
 
              that the claimant's alleged injury arose out of and in 
 
              the course of his employment?
 
         
 
              II.  Did the deputy industrial commissioner err in 
 
              determining that the claimant was entitled to healing 
 
              period benefits until December 7, 1990?
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed February 14, 1992 are adopted as final agency 
 
         action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed February 14, 1992 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              The first issue to address is whether claimant has sustained 
 
         an injury which arose out of and in the course of his employment.
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and 
 
         circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
         415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283, 287 (Iowa 1971).
 
         
 
              Defendants raised the defense of horseplay and willful 
 
         injury under Iowa Code section 85.16(l) and (3).
 
         
 
              Claimant has the burden of proving that his injury arose out 
 
         of and in the course of his employment.  Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  On the other 
 
         hand, defendants are required to bear the burden of establishing 
 
         the affirmative defense.  Everts v. Jorgensen, 289 N.W. 11 (Iowa 
 
         1939).
 
         
 
              Iowa Code section 85.16 provides in pertinent part as 
 
         follows:
 
         
 
              No compensation under this chapter shall be allowed for 
 
              an injury caused:
 
         
 
              1.  By the employee's willful intent to injure the 
 
              employee's self or to willfully injure another.
 
         
 
                 ....
 
         
 
              3.  By the willful act of a third party directed 
 
              against the employee for reasons personal to such 
 
              employee.
 
         
 
              Professor Larson in the Law of Workmen's Compensation, 
 
         section 11.2 at 3-132 (1972 ed.) states:
 
         
 
              It is universally agreed that if the assault grew out 
 
              of an argument over the performance of the work, the 
 
              possession of the tools of equipment used in the work, 
 
              delivery of a paycheck, quitting work, trying to act as 
 
              peace maker between quarreling co-employees and the 
 
              like, the assault is compensable.
 
         
 
              It is quite clear that claimant was not engaging in a 
 
         playful encounter with Wayne McFarland or the other two patrons.  
 
         Claimant was attempting to remove the three patrons from the 
 
         lounge.  Claimant was a credible witness.  Likewise, Teresa 
 
         Steils, the bar manager, was credible.  Defendants' witnesses 
 
         were not credible.  Ted Dean Timson ***** had absolutely no 
 
         memory of the events in question.  Phillip Standiford also had no 
 
         personal knowledge of the incident.  His testimony was based 
 
         solely on hearsay statements.  Standiford was not even present on 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         the day in question.  His testimony was disregarded.
 
         
 
              Claimant did not aggressively participate in horseplay.  
 
         Claimant was merely attempting to evict the three patrons from 
 
         the business.  It was Mr. McFarland who initiated the aggressive 
 
         behavior.  Claimant was only attempting to eject the patrons 
 
         after the bar had closed.  Consequently, this case does not fall 
 
         under the horseplay defense.
 
         
 
              Claimant has met his burden that his injury arose out of and 
 
         in the course of his employment.
 
         
 
              The second issue to address is whether claimant's injury is 
 
         causally related to the disability on which he now bases his 
 
         claim.
 
         
 
              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, 354 
 
         (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
         297 (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).
 
         
 
              Claimant has satisfied this requirement vis-a-vis the 
 
         testimony of Dr. Delbridge.  The treating physician related 
 
         claimant's condition to the work injury on August 27, 1989 
 
         (Exhibit 1, page 7).  Claimant has met his burden.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         any permanent partial disability benefits.  The parties have 
 
         stipulated that the type of disability, if the injury is found to 
 
         be a cause of permanent disability, is an industrial disability 
 
         to the body as a whole.  Dr. Delbridge opined claimant had an 
 
         eight percent functional impairment.
 
         
 
              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 and 
 
         inability to engage in employment for which the employee 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).
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              Claimant is permanently restricted from lifting beer kegs 
 
         over his head, from engaging in altercations, from lifting more 
 
         than 10 pounds above his waist, from performing overhead work 
 
         with his right upper extremity and from repetitive reaching for 
 
         even five pound objects.  These are severe restrictions.  
 
         Claimant is virtually precluded from hands on type ironwork.  He 
 
         is only allowed to engage in purely supervisory construction 
 
         work.  This is rare in the ironwork industry and it is doubtful 
 
         whether claimant can find this type of job on any regular basis. 
 
         Such a supervisor is only found on very large projects.  Wayne 
 
         Magee, owner of Magee Construction, testified in his deposition 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         that a nonworking ironworker supervisor is abnormal (Ex. 2, p. 
 
         35, lines 10-14).
 
         
 
              At the time of the work injury, claimant was earning $16.68 
 
         per hour in construction.  Claimant also earned $500 biweekly as 
 
         wages for the work he performed at the bar.  Since the work 
 
         injury, claimant's duties at the bar have been part-time duties.  
 
         He only works sporadic hours, with more hours on the weekends.  
 
         Claimant's capacity is reduced with respect to the construction 
 
         job.  His earning capacity regarding the bar has not been reduced 
 
         since claimant has always had help at the lounge.  His employees 
 
         have routinely performed duties relative to bartending, cleaning 
 
         and managerial functions.  Claimant is still capable of 
 
         performing the same bar duties he performed prior to his injury.
 
         
 
              Claimant possesses some transferable skills from prior jobs.  
 
         His ability to be retrained is limited by his age and shoulder 
 
         condition.
 
         
 
              Therefore, based upon the foregoing evidence, all of the 
 
         factors used to determine industrial disability and using agency 
 
         expertise, it is determined that claimant has sustained a 25 
 
         percent industrial disability.  As a consequence, he is entitled 
 
         to 125 weeks of permanent partial disability benefits commencing 
 
         on December 8, 1990.
 
         
 
              The next issue to address is the issue dealing with healing 
 
         period benefits.
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
         interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              *****
 
         
 
              [Claimant returned to light duty work April 27, 1990 under 
 
         work restrictions.  This constitutes a return to work under Iowa 
 
         Code 85.34(1), and ends claimant's healing period.  Although 
 
         claimant's doctor opined that claimant reached maximum medical 
 
         improvement on December 7, 1990, claimant's return to work 
 
         occurred earlier and section 85.34(1) states the healing period 
 
         ends upon the occurrence of the first of the three events that 
 
         terminate a healing period.  The fact that claimant may have 
 
         returned to work other than the work he was doing at the time of 
 
         the injury is irrelevant, as the language referring to 
 
         "employment substantially similar" is in conjunction with another 
 
         alternative under 85.34(1).  The language in question refers only 
 
         to a return to "work", and does not require a return to the same 
 
         kind of work as long as the employee actually returns to work.  
 
         To hold otherwise would result in claimant receiving both healing 
 
         period benefits for being off work, and receiving wages or 
 
         temporary partial disability benefits for the same period of 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         time.  Claimant's healing period ended when he returned to work 
 
         on April 27, 1990.]
 
         
 
              Claimant is also entitled to medical benefits pursuant to 
 
         section 85.27.  The employer shall furnish reasonable surgical, 
 
         medical, dental, osteopathic, chiropractic, podiatric, physical 
 
         rehabilitation, nursing, ambulance and hospital services and 
 
         supplies for all conditions compensable under the workers' 
 
         compensation law.  The employer shall also allow reasonable and 
 
         necessary transportation expenses incurred for those services.  
 
         The employer has the right to choose the provider of care, except 
 
         where the employer has denied liability for the injury.  Section 
 
         85.27.; Holbert v. Townsend Engineering Co., Thirty-second 
 
         Biennial Report of the Industrial Commissioner 78 (Review 
 
         Decision 1975).  Claimant has the burden of proving that the fees 
 
         charged for such services are reasonable.  Anderson v. High Rise 
 
         Constr. Specialists, Inc., File number 850096 (Appeal Decision 
 
         1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 
              Claimant is entitled to the following:
 
         
 
              Arnold Delbridge, M.D.                  $ 1,892.00
 
              6-7-91                                       28.00
 
         
 
              Kent P. Ellerbroek, M.D.                     47.00
 
         
 
              Ronald R. Roth, M.D.                        162.00
 
         
 
              Theodore S. Lederman, M.D.                   17.00
 
         
 
              Linda M. Cooley, M.D.                        17.00
 
         
 
              Covenant Medical Center                   4,016.65
 
         
 
              Clinical Radiologists, PC                    39.80
 
         
 
              Black Hawk Anesthesiologists, PC            330.00
 
         
 
              John Milner-Brage, M.D.                   1,030.00
 
         
 
              Clinical Pathology Assoc., PC                47.50
 
         
 
              Cedar Valley Physical Therapy             7,295.25
 
         
 
              Prescriptions                               359.57
 
         
 
                                            Total     $15,281.77
 
         
 
              The final issue to address is the rate of claimant's weekly 
 
         benefits.  As an officer of the corporation, claimant is governed 
 
         by 85.36(11).  The section reads:
 
         
 
              If a wage, or method of calculating a wage, is used for 
 
              the basis of the payment of a workers' compensation 
 
              insurance premium for a proprietor, partner, or officer 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
              of a corporation, the wage or the method of calculating 
 
              the wage is determinative for purposes of computing the 
 
              proprietor's, partner's, or officer's weekly workers' 
 
              compensation benefit rate.
 
         
 
              The parties have stipulated that claimant is married and 
 
         entitled to two exemptions.  Exhibit 24B-l shows the claimant's 
 
         wage rate to be $141.00 per week.  The $141.00 is the amount upon 
 
         which the claimant's workers' compensation insurance premium is 
 
         calculated.  This is the wage rate which determines claimant's 
 
         weekly compensation rate.  Using the Guide to Iowa Workers' 
 
         Compensation Claim Handling, July 1, 1989, claimant is entitled 
 
         to a weekly benefit rate of $103.47.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                              
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits from August 27, 1989 to April 27, 1990 at the rate of 
 
         one hundred three and 47/l00 dollars ($103.47) per week.
 
         
 
              That defendants shall pay unto claimant one hundred 
 
         twenty-five (125) weeks of permanent partial disability benefits 
 
         at the rate of one hundred three and 47/l00 dollars ($103.47) per 
 
         week and commencing on April 28, 1990.
 
         
 
              That defendants shall also pay the aforementioned medical 
 
         benefits in the sum of fifteen thousand two hundred eighty-one 
 
         and 77/l00 dollars ($15,281.77).
 
         
 
              That all accrued benefits be paid in a lump sum.
 
         
 
              That defendants receive credit for benefits previously paid.
 
         
 
              That interest accrue pursuant to Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this matter including 
 
         the transcription of the hearing.
 
         
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         First National Building, 6th Floorr
 
         P O Box 2634
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Timothy W. Hamann
 
         Mr. Bruce L. Gettman, Jr.
 
         Attorneys at Law
 
         River Plaza Building
 
         10 West 4th St
 
         P O Box 596
 
         Waterloo, Iowa  50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1105; 1602; 1802; 3000; 5-1803
 
                                          Filed May 28, 1993
 
                                          BYRON K. ORTON
 
                                          
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JIMMY B. CHRISTENSEN,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 926899
 
            POCKET LOUNGE, INC.,          :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE AND CASUALTY CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1105; 1602
 
            
 
                 Claimant was an officer of a bar which was 
 
            incorporated.  Claimant needed to remain on the premises 
 
            until after the bar closed so he could pay the band.
 
            
 
                 From 2:10 a.m. until 2:30 a.m. claimant was in his 
 
            office tallying the nightly receipts.  The manager entered 
 
            the office and reported to claimant that three patrons had 
 
            entered the lounge and would not leave the premises.  
 
            Claimant then left his office and stood behind the bar.  He 
 
            engaged in a conversation with the three patrons and asked 
 
            them if they were drinking beer since it was after hours.  
 
            The patrons informed claimant they were drinking soda pop.  
 
            Claimant told the three customers to finish their game of 
 
            pool and to leave the premises after their game.
 
            
 
                 Claimant returned to the office.  The manager continued 
 
            her closing duties.  After claimant put the evening's 
 
            proceeds into his safe, he returned to the bar area where he 
 
            discovered two of the patrons behind the bar drawing beer 
 
            from the tapper.  Claimant rushed up to them, grabbed two 
 
            cups of beer and ordered the patrons out of the building.
 
            
 
                 While the above was taking place, the manager was 
 
            cleaning another area of the bar.  A patron by the name of 
 
            Wayne McFarland lunged for claimant and grabbed him in a 
 
            bear hug.  Claimant tried to put his arms around Mr. 
 
            McFarland's chest but claimant experienced a pain which he 
 
            described as "an explosion of his arm."  Claimant fell to 
 
            the floor and screamed at the three men to leave.
 

 
            
 
 
 
                       
 
                        
 
                 Defendants raised the issue of horseplay under Iowa 
 
            Code section 85.16.  However, defendants failed to meet 
 
            their burden of proof relative to the horseplay defense.  
 
            Defendants' witnesses were not credible.
 
            
 
            5-1803
 
            Claimant was awarded a 25 percent permanent partial 
 
            disability.
 
            
 
            3000
 
            Claimant was an officer of the corporation.  His rate was 
 
            calculated pursuant to section 85.36(11).  The sum of 
 
            $141.00 was used as the wage rate when calculating the 
 
            insurance premium.  The above wage rate was used to 
 
            determine claimant's weekly compensation rate.
 
            
 
            1802
 
            Claimant's healing period under Iowa Code 85.34(1) ended 
 
            when he returned to work, even though the return was with 
 
            restrictions.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JIMMY B. CHRISTENSEN,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 926899
 
            POCKET LOUNGE, INC.,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE AND CASUALTY CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Jimmy B. Christensen, against his employer, 
 
            Pocket Lounge, Inc., and its insurance carrier, United Fire 
 
            and Casualty Company, defendants.  The case was heard on 
 
            August 13, 1991, in Des Moines, Iowa.  The record consists 
 
            of the testimony of claimant, as well as Carol Christensen, 
 
            spouse of claimant, and the testimony of Teresa Steils, bar 
 
            manager; Daniel Steffeny, student; Angie Hester; Wayne W. 
 
            McFarland; Randal Lipperd; Tom O. Mather; and Natalie 
 
            Bloeser Peterson.  The record additionally consists of 
 
            exhibits 1-33.  Claimant's attorney currently possesses 
 
            exhibit 27, a large floor plan of the lounge.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            employment; 2) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent disability 
 
            benefits; 3) the applicable rate, if any; 4) whether 
 
            claimant is entitled to medical benefits pursuant to section 
 
            85.27 of the Iowa Code, as amended; and 5) whether claimant 
 
            was involved in "horseplay."
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 48 years old.  For a major portion of his 
 
            working years claimant has worked as an ironworker.  In 
 
            September of 1984, claimant purchased the Pocket Lounge.  
 
            Subsequently, he changed the name to Rush.  In January of 
 
            1985, claimant left the ironwork trade.  He devoted his 
 
            energies to the bar business on a full time basis.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 However, in 1986, claimant incorporated his business 
 
            and he established himself as president of the corporation.  
 
            Claimant's duties included bartending, bookkeeping, 
 
            "bouncing", hiring and firing, inventorying stock and 
 
            scheduling employees.  Claimant worked at the lounge 10-14 
 
            hours per day.
 
            
 
                 In 1987 claimant returned to the ironwork trade.  At 
 
            the same time, he engaged in part-time work at the lounge.  
 
            By 1989, claimant had employed a full time manager to 
 
            operate the bar.  Claimant worked 3 to 4 nights per week 
 
            when there was entertainment playing at the lounge.  
 
            Otherwise, his hours were sporadic.
 
            
 
                 In August of 1989, claimant worked Monday through 
 
            Thursday, 2 to 3 hours per night, Friday, 4 hours per night 
 
            and on Saturday, 8 to 10 hours per day, and until the lounge 
 
            closed at 2:00 a.m. on Sunday morning.  Such were the hours 
 
            claimant worked on August 27, 1989.
 
            
 
                 On the aforementioned date, claimant arrived at the 
 
            lounge between 7:00 p.m. and 7:30 p.m.  He engaged in a 
 
            variety of routine activities.  There was a band playing 
 
            that Saturday evening and claimant needed to remain on the 
 
            premises until after the bar closed so he could pay the 
 
            band.  Also working that night was the manager, Teresa 
 
            Steils.
 
            
 
                 From 2:10 a.m. until 2:30 a.m. claimant was in his 
 
            office tallying the nightly receipts.  The manager entered 
 
            the office and reported to claimant that three patrons had 
 
            entered the lounge and would not leave the premises.  
 
            Claimant then left his office and stood behind the bar.  He 
 
            engaged in a conversation with the three patrons and asked 
 
            them if they were drinking beer since it was after hours.  
 
            The patrons informed claimant they were drinking soda pop.  
 
            Claimant told the three customers to finish their game of 
 
            pool and to leave the premises after their game.
 
            
 
                 Claimant returned to the office.  The manager continued 
 
            her closing duties.  After claimant put the evening's 
 
            proceeds into his safe, he returned to the bar area where he 
 
            discovered two of the patrons behind the bar drawing beer 
 
            from the tapper.  Claimant rushed up to them, grabbed two 
 
            cups of beer and ordered the patrons out of the building.
 
            
 
                 While the above was taking place, the manager was 
 
            cleaning another area of the bar.  A patron by the name of 
 
            Wayne McFarland lunged for claimant and grabbed him in a 
 
            bear hug.  Claimant tried to put his arms around Mr. 
 
            McFarland's chest but claimant experienced a pain which he 
 
            described as "an explosion of his arm."  Claimant fell to 
 
            the floor and screamed at the three man to leave.
 
            
 
                 Mr. McFarland was under the influence according to the 
 
            bar manager and according to the testimony of McFarland's 
 
            lifelong friend, Ted Dean Timson.  McFarland was yelling 
 
            loudly and even his friend, Phillip Standiford, described 
 
            McFarland as "outspoken."  Claimant described Mr. McFarland 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            as "very mean" when he was intoxicated.
 
            
 
                 Claimant testified he passed out after the altercation.  
 
            When he regained consciousness, he was near his office door 
 
            and he began screaming for help.
 
            
 
                 Claimant received assistance.  He then drove to 
 
            Covenant Memorial Hospital where he received medical 
 
            attention in the emergency room.
 
            
 
                 Arnold E. Delbridge, M.D., performed emergency surgery 
 
            for an acutely torn right bicep tendon.  Subsequent to his 
 
            surgery, claimant experienced severe pain in his right 
 
            shoulder area.  Dr. Delbridge ordered a MRI of the right 
 
            shoulder.  The orthopedic surgeon discovered claimant had a 
 
            thinning of the rotator cuff and a partial thickness tear of 
 
            the rotator cuff.  Surgery on the right shoulder occurred on 
 
            December 27, 1990.  Claimant participated in therapy and 
 
            used a pillow and sling device.
 
            
 
                 As of April 27, 1990, claimant's physician released 
 
            claimant to light duty work in the bar only.  Claimant was 
 
            restricted from lifting beer kegs and from involving himself 
 
            in altercations.  Dr. Delbridge opined claimant could 
 
            supervise employees, order supplies, make out employee 
 
            schedules and other incidental office work.
 
            
 
                 Dr. Delbridge opined claimant could have worked in a 
 
            supervisory position on a construction site as of July 1, 
 
            1990.  However, the physician opined claimant could not do 
 
            full bar duties until December 7, 1990.  Even then, claimant 
 
            was restricted from ever lifting kegs above his waist or 
 
            wrestling with customers.  Claimant was also precluded from 
 
            performing all ironworker duties with the exception of 
 
            supervisory responsibilities.
 
            
 
                 Dr. Delbridge opined claimant had an eight percent func
 
            tional impairment rating.  As of May 1991, claimant returned 
 
            to supervising ironwork for Magee Construction.  He became a 
 
            nonworking supervisor.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Defendants raised the defense of horseplay and willful 
 
            injury under Iowa Code section 85.16(l) and (3).
 
            
 
                 Claimant has the burden of proving that his injury 
 
            arose out of and in the course of his employment.  Musselman 
 
            v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).  On the other hand, defendants are required to bear 
 
            the burden of establishing the affirmative defense.  Everts 
 
            v. Jorgensen, 289 N.W. 11 (Iowa 1939).
 
            
 
                 Iowa Code section 85.16 provides in pertinent part as 
 
            follows:
 
            
 
                 No compensation under this chapter shall be 
 
                 allowed for an injury caused:
 
            
 
                 1.  By the employee's willful intent to injure the 
 
                 employee's self or to willfully injure another.
 
            
 
                    ....
 
            
 
                 3.  By the willful act of a third party directed 
 
                 against the employee for reasons personal to such 
 
                 employee.
 
            
 
                 Professor Larson in the Law of Workmen's Compensation, 
 
            section 11.2 at 3-132 (1972 ed.) states:
 
            
 
                 It is universally agreed that if the assault grew 
 
                 out of an argument over the performance of the 
 
                 work, the possession of the tools of equipment 
 
                 used in the work, delivery of a paycheck, quitting 
 
                 work, trying to act as peace maker between 
 
                 quarreling co-employees and the like, the assault 
 
                 is compensable.
 
            
 
                 It is quite clear to the undersigned that claimant was 
 
            not engaging in a playful encounter with Wayne McFarland or 
 
            the other two patrons.  Claimant was attempting to remove 
 
            the three patrons from the lounge.  Claimant was a credible 
 
            witness.  Likewise, Teresa Steils, the bar manager, was 
 
            credible.  Defendants' witnesses were not credible.  Ted 
 
            Dean Timson was one of the least credible witnesses this 
 
            deputy has ever encountered in this capacity.  Mr. Timson 
 
            had absolutely no memory of the events in question.  Phillip 
 
            Standiford also had no personal knowledge of the incident.  
 
            His testimony was based solely on hearsay statements.  
 
            Standiford was not even present on the day in question.  His 
 
            testimony was disregarded.
 
            
 
                 It is evident to the undersigned claimant did not 
 
            aggressively participate in horseplay.  Claimant was merely 
 
            attempting to evict the three patrons from the business.  It 
 
            was Mr. McFarland who initiated the aggressive behavior.  
 
            Claimant was only attempting to eject the patrons after the 
 
            bar had closed.  Consequently, this case does not fall under 
 
            the horseplay defense.
 
            
 
                 To the satisfaction of the undersigned, claimant has 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            met his burden that his injury arose out of and in the 
 
            course of his employment.
 
            
 
                 The second issue to address is whether claimant's 
 
            injury is causally related to the disability on which he now 
 
            bases his claim.
 
            
 
                 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, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (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).
 
            
 
                 Claimant too has satisfied this requirement vis-a-vis 
 
            the testimony of Dr. Delbridge.  The treating physician 
 
            related claimant's condition to the work injury on August 
 
            27, 1989 (Exhibit 1, page 7).  Claimant has met his burden.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to any permanent partial disability benefits.  The 
 
            parties have stipulated that the type of disability, if the 
 
            injury is found to be a cause of permanent disability, is an 
 
            industrial disability to the body as a whole.  Dr. Delbridge 
 
            opined claimant had an eight percent functional impairment.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear 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 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Peterson v. 
 
            Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
            1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
            26, 1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is permanently restricted from lifting beer 
 
            kegs over his head, from engaging in altercations, from 
 
            lifting more than 10 pounds above his waist, from performing 
 
            overhead work with his right upper extremity and from 
 
            repetitive reaching for even five pound objects.  These are 
 
            severe restrictions.  Claimant is virtually precluded from 
 
            hands on type ironwork.  He is only allowed to engage in 
 
            purely supervisory construction work.  This is rare in the 
 
            ironwork industry and it is doubtful whether claimant can 
 
            find this type of job on any regular basis. Such a 
 
            supervisor is only found on very large projects.  Wayne 
 
            Magee, owner of Magee Construction, testified in his 
 
            deposition that a nonworking ironworker supervisor is 
 
            abnormal (Ex. 2, p. 35, lines 10-14).
 
            
 
                 At the time of the work injury, claimant was earning 
 
            $16.68 per hour in construction.  Claimant also earned $500 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            biweekly as wages for the work he performed at the bar.  
 
            Since the work injury, claimant's duties at the bar have 
 
            been part-time duties.  He only works sporadic hours, with 
 
            more hours on the weekends.  Claimant's capacity is reduced 
 
            with respect to the construction job.  His earning capacity 
 
            regarding the bar has not been reduced since claimant has 
 
            always had help at the lounge.  His employees have routinely 
 
            performed duties relative to bartending, cleaning and 
 
            managerial functions.  Claimant is still capable of perform
 
            ing the same duties he performed prior to his injury.
 
            
 
                 Claimant possesses some transferable skills from prior 
 
            jobs.  His ability to be retrained is limited by his age and 
 
            shoulder condition.
 
            
 
                 Therefore, based upon the foregoing evidence, all of 
 
            the factors used to determine industrial disability and 
 
            using agency expertise, it is determined that claimant has 
 
            sustained a 25 percent industrial disability.  As a 
 
            consequence, he is entitled to 125 weeks of permanent 
 
            partial disability benefits commencing on December 8, 1990.
 
            
 
                 The next issue to address is the issue dealing with 
 
            healing period benefits.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            App. 1981).  Healing period benefits can be interrupted or 
 
            intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 In the instant case, Dr. Delbridge opined claimant had 
 
            reached maximum medical improvement as of December 7, 1990 
 
            (Ex. 1, p. 22, ll. 4-7).  Prior to that date, claimant was 
 
            only released to light duty work at the bar as of April 27, 
 
            1990 or to supervisory construction work as of July 1, 1990.  
 
            However, on December 7, 1990, claimant had reached his final 
 
            status.  He is entitled to healing period benefits from 
 
            August 27, 1989 to December 7, 1990.  This is a period of 
 
            66.857 weeks.
 
            
 
                 Claimant is also entitled to medical benefits pursuant 
 
            to section 85.27.  The employer shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies for all conditions 
 
            compensable under the workers' compensation law.  The 
 
            employer shall also allow reasonable and necessary 
 
            transportation expenses incurred for those services.  The 
 
            employer has the right to choose the provider of care, 
 
            except where the employer has denied liability for the 
 
            injury.  Section 85.27.; Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78 (Review Decision 1975).  Claimant has the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            burden of proving that the fees charged for such services 
 
            are reasonable.  Anderson v. High Rise Constr. Specialists, 
 
            Inc., File number 850096 (Appeal Decision 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa App. 1983).
 
            
 
                 Claimant is entitled to the following:
 
            
 
                 Arnold Delbridge, M.D.                  $ 1,892.00
 
                 6-7-91                                       28.00
 
            
 
                 Kent P. Ellerbroek, M.D.                     47.00
 
            
 
                 Ronald R. Roth, M.D.                        162.00
 
            
 
                 Theodore S. Lederman, M.D.                   17.00
 
            
 
                 Linda M. Cooley, M.D.                        17.00
 
            
 
                 Covenant Medical Center                   4,016.65
 
            
 
                 Clinical Radiologists, PC                    39.80
 
            
 
                 Black Hawk Anesthesiologists, PC            330.00
 
            
 
                 John Milner-Brage, M.D.                   1,030.00
 
            
 
                 Clinical Pathology Assoc., PC                47.50
 
            
 
                 Cedar Valley Physical Therapy             7,295.25
 
            
 
                 Prescriptions                               359.57
 
            
 
                                               Total     $15,281.77
 
            
 
                 The final issue to address is the rate of claimant's 
 
            weekly benefits.  As an officer of the corporation, claimant 
 
            is governed by 85.36(11).  The section reads:
 
            
 
                 If a wage, or method of calculating a wage, is 
 
                 used for the basis of the payment of a workers' 
 
                 compensation insurance premium for a proprietor, 
 
                 partner, or officer of a corporation, the wage or 
 
                 the method of calculating the wage is 
 
                 determinative for purposes of computing the 
 
                 proprietor's, partner's, or officer's weekly 
 
                 workers' compensation benefit rate.
 
            
 
                 The parties have stipulated that claimant is married 
 
            and entitled to two exemptions.  Exhibit 24B-l shows the 
 
            claimant's wage rate to be $141.00 per week.  The $141.00 is 
 
            the amount upon which the claimant's workers' compensation 
 
            insurance premium is calculated.  This is the wage rate 
 
            which determines claimant's weekly compensation rate.  Using 
 
            the Guide to Iowa Workers' Compensation Claim Handling, July 
 
            1, 1989, claimant is entitled to a weekly benefit rate of 
 
            $103.47.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant sixty-six point 
 
            eight-five-seven (66.857) weeks of healing period benefits 
 
            at the rate of one hundred three and 47/l00 dollars 
 
            ($103.47) per week.
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of one hundred three and 47/l00 dollars 
 
            ($103.47) per week and commencing on December 8, 1990.
 
            
 
                 Defendants shall also pay the aforementioned medical 
 
            benefits in the sum of fifteen thousand two hundred 
 
            eighty-one and 77/l00 dollars ($15,281.77).
 
            
 
                 That all accrued benefits be paid in a lump sum.
 
            
 
                 That defendants receive credit for benefits previously 
 
            paid.
 
            
 
                 That interest accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            1st Nat'l Bldg 6th Flr
 
            P O Box 2634
 
            Waterloo  IA  50704
 
            
 
            Mr. Timothy W. Hamann
 
            Mr. Bruce L. Gettman, Jr.
 
            Attorneys at Law
 
            River Plaza Bldg
 
            10 W 4th St
 
            P O Box 596
 
            Waterloo  IA  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1105; 1602; 3000; 5-1803
 
                                          Filed February 14, 1992
 
                                          MICHELLE A. McGOVERN
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            JIMMY B. CHRISTENSEN,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 926899
 
            POCKET LOUNGE, INC.,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE AND CASUALTY CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1105; 1602
 
            
 
                 Claimant was an officer of a bar which was 
 
            incorporated.  Claimant was working on the evening of August 
 
            26, 1989.  He arrived at the lounge between 7:00 p.m. and 
 
            7:30 p.m.  He engaged in a variety of routine activities.  
 
            There was a band playing that Saturday evening and claimant 
 
            needed to remain on the premises until after the bar closed 
 
            so he could pay the band.  Also working that night was the 
 
            manager, Teresa Steils.
 
            
 
                 From 2:10 a.m. until 2:30 a.m. claimant was in his 
 
            office tallying the nightly receipts.  The manager entered 
 
            the office and reported to claimant that three patrons had 
 
            entered the lounge and would not leave the premises.  
 
            Claimant then left his office and stood behind the bar.  He 
 
            engaged in a conversation with the three patrons and asked 
 
            them if they were drinking beer since it was after hours.  
 
            The patrons informed claimant they were drinking soda pop.  
 
            Claimant told the three customers to finish their game of 
 
            pool and to leave the premises after their game.
 
            
 
                 Claimant returned to the office.  The manager continued 
 
            her closing duties.  After claimant put the evening's 
 
            proceeds into his safe, he returned to the bar area where he 
 
            discovered two of the patrons behind the bar drawing beer 
 
            from the tapper.  Claimant rushed up to them, grabbed two 
 
            cups of beer and ordered the patrons out of the building.
 
            
 
                 While the above was taking place, the manager was 
 
            cleaning another area of the bar.  A patron by the name of 
 
            Wayne McFarland lunged for claimant and grabbed him in a 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            bear hug.  Claimant tried to put his arms around Mr. 
 
            McFarland's chest but claimant experienced a pain which he 
 
            described as "an explosion of his arm."  Claimant fell to 
 
            the floor and screamed at the three man to leave.
 
            
 
                 Mr. McFarland was under the influence according to the 
 
            bar manager and according to the testimony of McFarland's 
 
            lifelong friend, Ted Dean Timson.  McFarland was yelling 
 
            loudly and even his friend, Phillip Standiford, described 
 
            McFarland as "outspoken."  Claimant described Mr. McFarland 
 
            as "very mean" when he was intoxicated.
 
            
 
                 Claimant testified he passed out after the altercation.  
 
            When he regained consciousness, he was near his office door 
 
            and he began screaming for help.
 
            
 
                 Claimant received assistance.  He then drove to 
 
            Covenant Memorial Hospital where he received medical 
 
            attention in the emergency room.
 
            
 
                 Defendants raised the issue of horseplay under Iowa 
 
            Code section 85.16.  However, defendants failed to meet 
 
            their burden of proof relative to the horseplay defense.  
 
            Defendants' witnesses were not credible.
 
            
 
            5-1803
 
            Claimant was awarded a 25 percent permanent partial 
 
            disability.
 
            
 
            3000
 
            Claimant was an officer of the corporation.  His rate was 
 
            calculated pursuant to section 85.36(11).  The sum of 
 
            $141.00 was used as the wage rate when calculating the 
 
            insurance premium.  The above wage rate was used to 
 
            determine claimant's weekly compensation rate.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         WILLENE C. TITUS,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 916954
 
         HUSH PUPPY SHOES, a/k/a       :                 926960
 
         TODD'S NATURALIZERS,          :
 
                                       :          A P P E A L
 
              Employer,                :
 
                                       :        D E C I S I O N
 
         and                           :
 
                                       :
 
         AMERICAN MOTORISTS INSURANCE, :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 25, 1991, is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of March, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th Street
 
         Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 6th Avenue, Suite 300
 
         P O Box 9130
 
         Des Moines, Iowa  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed March 20, 1992
 
            BYRON K. ORTON
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLENE C. TITUS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 916954
 
            HUSH PUPPY SHOES, a/k/a       :                 926960
 
            TODD'S NATURALIZERS,          :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            Summary affirmance of deputy's decision filed July 25, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLENE C. TITUS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 916954
 
            vs.                           :                   926960
 
                                          :
 
            HUSH PUPPY SHOES, a/k/a       :      A R B I T R A T I O N
 
            TODD'S NATURALIZERS,          :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are consolidated cases.  File number 916954 is a 
 
            proceeding in arbitration filed by claimant Willene C. Titus 
 
            against defendant employer Hush Puppy Shoes and its 
 
            insurance carrier, American Motorists, upon her allegation 
 
            of an injury to her back on March 1, 1989.  File number 
 
            926960 alleges a like injury on October 5, 1989.  Both 
 
            petitions seek benefits under the Iowa Workers' Compensation 
 
            Act.
 
            
 
                 The cause came on for hearing in Des Moines, Iowa, on 
 
            July 2, 1991.  The record consists of claimant's testimony 
 
            and joint exhibits 1 through 7, inclusive.  Respective 
 
            counsel, both experienced in workers' compensation 
 
            litigation, are commended for pruning the record of 
 
            irrelevant and repetitious evidence.
 
            
 
                                      issues
 
            
 
                 It is stipulated by all parties that an employment 
 
            relationship existed between claimant and defendant employer 
 
            at the time of each alleged injury, that no temporary 
 
            disability benefits are sought with respect to the March 
 
            injury, that any permanent disability is an industrial 
 
            disability, that some benefits have been paid, and that the 
 
            appropriate rate of weekly benefits is $110.02 (March) or 
 
            $131.37 (October).
 
            
 
                 Issues presented for resolution in file number 916954 
 
            include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on March 1, 1989;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and permanent disability;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 3.  The extent of permanent disability, if any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 Issues presented for resolution in file number 926960 
 
            include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on October 5, 1989;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and either temporary or permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of disability, if any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 The parties stipulated that the providers of medical 
 
            services would testify in the absence of contrary evidence 
 
            that fees and treatment were reasonable and necessary.  
 
            Causal connection to the work injury remains in dispute.  
 
            Defendants attempted to raise the defense of lack of 
 
            authorization, but this was ruled invalid at hearing because 
 
            defendants did not admit liability on either claim.  
 
            Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner 
 
            Report 16 (1981).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Willene C. Titus, 47 years of age at hearing, is a 1962 
 
            high school graduate.  After high school, she took a 
 
            six-week college preparatory class, but did not then 
 
            continue at university.  She has no other formal education.
 
            
 
                 Claimant married close to her graduation from high 
 
            school, in June 1962.  She did not thereafter enter the 
 
            labor force until 1978, when she took a part-time position 
 
            as a school crossing guard.  She remained in this work for 
 
            approximately four years, next taking a position as a shoe 
 
            store manager.  This work involved sales, inventory and 
 
            office paperwork; 20 months later, the store closed.  After 
 
            approximately eight months of unemployment, she took a 
 
            position with a laundry and dry cleaning business, remaining 
 
            so employed as a counter helper for some four and one-half 
 
            years.
 
            
 
                 In July 1988, claimant took employment with defendant 
 
            Hush Puppy Shoes as a salesclerk.  Accounting and inventory 
 
            tasks were later added to her job, and she became assistant 
 
            store manager in approximately June 1989.  Claimant remained 
 
            so employed until quitting her job upon the advice of one of 
 
            her treating physicians, Sinesio Misol, M.D., on or about 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            October 30, 1989.  Ms. Titus has not worked since, although, 
 
            as shall be seen, she began training as a receptionist 
 
            through the Iowa Division of Vocational Rehabilitation.
 
            
 
                 Claimant has some history of back complaints prior to 
 
            March 1989, although no permanent impairment or medical 
 
            restrictions appear of record.  Her family physician, Dennis 
 
            F. Rolek, D.O., (who testified by deposition on October 1, 
 
            1990), diagnosed a herniated lumbosacral disc as early as 
 
            April 19, 1984 based on complaints of severe right hip and 
 
            mild left hip pain relative a fall at home six months 
 
            before.  However, claimant returned to the office on April 
 
            30 feeling better and no permanent restrictions were 
 
            imposed.  Dr. Rolek noted in his deposition that this 
 
            assessment was a tentative, not final diagnosis.
 
            
 
                 Claimant was also hospitalized in April 1988 and seen 
 
            by Dr. Rolek's partner, Robert Polle, M.D.  She was admitted 
 
            with insidious onset of progressive right flank pain 
 
            described as achy and crampy.  Impression was of acute onset 
 
            of right flank pain with associated microscopic hematuria-- 
 
            rule out nephrolithiasis.  In his deposition testimony, Dr. 
 
            Rolek recalled that claimant was hospitalized for a kidney 
 
            stone or bladder infection at that time, further indicating 
 
            that kidney infection or kidney stones commonly cause 
 
            referred pain to the back.  He "absolutely" did not consider 
 
            that incident to involve a back injury.
 
            
 
                 Claimant was seen again by Dr. Polle on January 4, 1989 
 
            for evaluation of hip and back pain along with several 
 
            unrelated problems, this being less than two months before 
 
            the first claimed injury.  Assessment included 
 
            osteoarthritis of the left hip, sciatica and lumbosacral 
 
            strain.  On January 9, claimant was seen by Dr. Rolek, whose 
 
            assessment included a "herniated" lumbosacral disc.  
 
            However, Dr. Rolek later testified that he believed 
 
            claimant's disc was only bulging, rather than herniated.  
 
            This, since she did not return for a recheck (although a 
 
            herniated disc would normally have created sufficient pain 
 
            to bring claimant promptly back).  Rather curiously, he 
 
            testified that he had written "herniated" because the word 
 
            was quicker and easier to write than "bulging."  This 
 
            explanation does not inspire confidence.  However, it is 
 
            hardly unheard of for a physician to change a diagnosis in 
 
            light of additional information.  It is also undisputed that 
 
            no work restrictions were at that time imposed.  Also of 
 
            significance is that no physician reports that claimant had 
 
            developed a limp through that time.
 
            
 
                 On March 1, 1989, claimant spent the day unloading a 
 
            shipment of shoes.  She does not specifically recall 
 
            injuring her back, but found herself unable to get out of 
 
            bed the following morning with paralysis-like symptoms in 
 
            her legs.  She was thereupon seen by Dr. Rolek at Mercy 
 
            Hospital Medical Center and underwent x-rays that found 
 
            normal alignment, vertebral bodies, disc spaces and 
 
            posterior elements in the lumbar spine with normal joints at 
 
            S1.  However, Dr. Misol, an orthopaedic surgeon, ordered 
 
            magnetic resonance imaging studies of the lumbar spine which 
 
            showed disc degeneration with a broad based 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            protrusion/herniation on the left at L5-S1 and facet 
 
            arthropathy at L4-5 and, to a lesser degree, L3-4.  Claimant 
 
            testified that she has never been symptom free since March 
 
            1, 1989, although the intensity of symptoms has varied to a 
 
            substantial degree.  In particular, symptoms were fairly 
 
            severe for three weeks following the March incident, 
 
            although there was some substantial improvement within a few 
 
            days.
 
            
 
                 Claimant returned to work (light duty) in the fourth 
 
            week.  However, when the store manager quit in June, she was 
 
            given additional duties, being named assistant manager and 
 
            taking on additional lifting.  She reports having bad and 
 
            good days, but generally not too bad.
 
            
 
                 Claimant continued working until October 5, 1989.  On 
 
            that day, a new store manager required her to handle a 
 
            shipment of shoes which she felt strained her back.  Dr. 
 
            Misol then treated her with an epidural injection on October 
 
            17 and eventually, on October 30, advised that she find a 
 
            line of work less physically demanding.
 
            
 
                 In a letter dated December 26, 1989, Dr. Misol wrote 
 
            that due to claimant's "bad disc" she "is not going to be 
 
            able to do much in the way of bending over and lifting," and 
 
            noted his recommendation that she find a less physically 
 
            demanding job.  A combination of bending and bending with 
 
            twist, particularly with weight, could easily aggravate 
 
            symptoms.  On January 12, 1990, Dr. Misol wrote that 
 
            claimant had reached maximum improvement, that the October 
 
            5, 1989 incident was in the nature only of a temporary 
 
            aggravation, and that claimant should try to eliminate 
 
            repetitious bending and lifting to avoid future 
 
            exacerbations.
 
            
 
                 On January 26, 1990, Dr. Misol wrote that claimant's 
 
            disc herniation was apparently the result of a slip without 
 
            really falling while at a mall in Des Moines, resulting in 
 
            physical impairment of approximately five percent of the 
 
            body as a whole.  It was further Dr. Misol's opinion that 
 
            the work incident of March 1, 1989 also was merely a 
 
            temporary aggravation of that condition and that no part of 
 
            the permanent impairment was related thereto.
 
            
 
                 However, the record now shows that Dr. Misol 
 
            misunderstood the slip incident in November 1988 (which also 
 
            was within the course of claimant's employment with Hush 
 
            Puppy Shoes) in that she merely twisted her knee and did not 
 
            injure her back or hip.  In a letter dated April 4, 1990, 
 
            Dr. Misol recognized this misunderstanding:
 
            
 
                 My office tells me there has been some problem 
 
                 because of records that I had in which was stated 
 
                 that this patient 3-4 months before I saw her on 
 
                 3-2-89, had slipped at the Mall while in Des 
 
                 Moines and that for awhile [sic] she had some 
 
                 minor backaches.  I don't remember how I got this 
 
                 information on my first visit with her at Mercy 
 
                 Hospital Emergency Room on 3-2-89 but was carried 
 
                 forward in our reports.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Because the patient did not recall that she ever 
 
                 had any problems with her back until she started 
 
                 to have her symptoms while employed with Hush 
 
                 Puppies.  I did go back to the Mercy Hospital 
 
                 records and also got in touch with her family 
 
                 physician, Dr. Rolek, and there is no evidence 
 
                 that she has ever had any backaches before 3-1-89, 
 
                 when while at work, they had received a shipment 
 
                 of shoes and they had to unload a lot of boxes.  
 
                 She then started to have pain in the back, 
 
                 radiating into the left lower extremity.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            In a letter dated July 9, 1990, Dr. Rolek expressed the view 
 
            that claimant's symptoms as of that date were probably 
 
            related to the claimed work injuries of March and October 
 
            1989 and that her present problems did not preexist in 
 
            January 1989.  Dr. Rolek maintained this view in his 
 
            deposition testimony.
 
            
 
                 On or about February 21, 1990, claimant was taking a 
 
            receptionist course under the aegis of the Iowa Division of 
 
            Vocational Rehabilitation.  While stepping off an elevator 
 
            at school, something audibly "snapped" in her back and 
 
            symptoms worsened.  She was seen at Mercy Hospital Medical 
 
            Center in the emergency room by Alan Heberer, D.O., whose 
 
            chart notes make no mention of any traumatic incident, but 
 
            report that claimant gave a history of exacerbations and 
 
            remissions of back and leg pain over the past few months and 
 
            had been doing "fair."  Claimant testified that she had been 
 
            doing well until this incident.  Symptoms are now much more 
 
            severe.
 
            
 
                 Claimant was then seen by Dr. Misol, whose notes of 
 
            February 23, 1990 merely indicate that claimant had done 
 
            fairly well until Monday "when for no particular reason pain 
 
            became worse onto the left lower extremity."  Claimant was 
 
            seen again by Dr. Misol on March 16, but chart notes still 
 
            make no reference to any particular incident of the month 
 
            before.  Nonetheless, Dr. Misol now believed that surgical 
 
            treatment was appropriate and recommended an exploratory 
 
            laminectomy and discectomy on the left side at L5-S1.  On 
 
            March 30, 1990, Dr. Misol repeated his then-understanding 
 
            that claimant's impairment was related to her 1988 slip/ 
 
            non-fall, and noted claimant's opinion that pain was getting 
 
            worse when she had been seen on February 23 and March 16.  
 
            Once again, Dr. Misol apparently saw nothing significant in 
 
            the "snapping" incident at school.  He again recommended 
 
            surgical treatment.
 
            
 
                 Defendants thereupon denied authorization for surgical 
 
            treatment, giving rise to this action.
 
            
 
                 A year later, claimant was seen for evaluation at the 
 
            University of Iowa Hospitals and Clinics.  Chart notes of 
 
            Dr. Piper and Dr. Found dated February 28, 1991 show an 
 
            opinion that the likelihood of surgical intervention helping 
 
            back and leg pain would be low due to "chronicity of her 
 
            symptoms, the large component of back pain versus leg pain, 
 
            and the lack of current tension signs."  Lower back 
 
            strengthening exercises and weight loss were recommended.  
 
            Claimant reported a 30-pound weight gain since the March 
 
            1989 injury and has a long history of obesity, having 
 
            previously undergone gastroplasty.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries on or about March 
 
            1, 1989 and October 5, 1989 which arose out of and in the 
 
            course of her employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 The Supreme Court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury. . . . The result of 
 
                 changes in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    . . . .
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries on or about 
 
            March 1, 1989 and October 5, 1989 are causally related to 
 
            the disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 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).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Serv. 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., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 Even though claimant reported back symptoms prior to 
 
            either alleged work injury, including as recently as January 
 
            1989, the record shows that she did not have medical 
 
            restrictions or industrial disability before March 1989.  
 
            Her treating family physician, Dr. Rolek, testified to his 
 
            belief that claimant had not herniated her disc as of 
 
            January 1989.  Prior to March, claimant did not walk with a 
 
            limp; thereafter, she did.
 
            
 
                 Two physicians have expressed a view on the causation 
 
            issue.  Both were treating physicians.  Dr. Rolek 
 
            indiscriminately cited both work injuries as causally 
 
            related to claimant's current condition.  Dr. Misol was 
 
            originally of the view that claimant's disc herniation 
 
            occurred when she slipped (also while working for defendant) 
 
            in November 1988, but the record also discloses that he 
 
            later recognized this was a misconception.  His April 1990 
 
            letter indicates, although not with ideal clarity, a causal 
 
            relationship between disability and the March injury.  Note 
 
            also that magnetic resonance imaging disclosed the existence 
 
            of a herniated disc in March 1989 for the first time.  
 
            Claimant credibly testified that she has not been symptom 
 
            free since that incident.
 
            
 
                 The best evidence in this record convinces this 
 
            observer that claimant developed or substantially aggravated 
 
            a herniated disc while unloading shoes on March 1, 1989, and 
 
            has sustained both temporary and permanent disability as a 
 
            result.
 
            
 
                 On the other hand, claimant's injury in October, also 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            while unloading a shipment of shoes, does not appear to have 
 
            independently caused additional permanent disability.  Dr. 
 
            Misol treated claimant following this incident and concluded 
 
            it was a temporary aggravation only.  Claimant is entitled 
 
            to temporary total disability benefits in file number 926960 
 
            from October 6, 1989 (apparently the first lost work day) 
 
            through January 12, 1990, when Dr. Misol opined that she 
 
            reached maximum improvement, see Iowa Code section 85.33(1).  
 
            This totals 14 weeks, 1 day.
 
            
 
                 Case number 916954 presents more difficult questions.  
 
            Claimant did sustain an injury arising out of and in the 
 
            course of her employment on March 1, 1989 as she alleges and 
 
            she has permanent disability as a result.  Because this 
 
            injury is to the body as a whole, it is compensated 
 
            industrially.  Industrial disability means reduction in 
 
            earning capacity.  Second Injury Fund v. Hodgins, 461 N.W.2d 
 
            454 (Iowa 1990).  Claimant's herniated disc has caused the 
 
            loss of her job and resulted in medical restrictions.  The 
 
            more serious question is whether that industrial disability 
 
            is now capable of measurement.
 
            
 
                 Claimant contends that she remains in a healing period 
 
            because Dr. Misol has recommended surgical intervention 
 
            which defendants have refused to authorize.  If claimant's 
 
            current condition is causally related to the March 1989 
 
            injury, this writer agrees.  Although defendants point to 
 
            evaluation by Drs. Found and Piper resulting in a 
 
            recommendation against surgery, Dr. Misol is also a 
 
            highly-qualified physician and is a treating physician.  His 
 
            opinion as to the necessity of back surgery is given more 
 
            weight with respect to his own patient.
 
            
 
                 However, the incident of February 21, 1990 looms as the 
 
            thorniest issue in this case.  Claimant testified that she 
 
            was doing well before stepping off an elevator on that date 
 
            when something audibly "snapped," exacerbating symptoms.  It 
 
            is not unreasonable to suppose that this constituted an 
 
            intervening and extraneous injury for which defendants 
 
            should not be held responsible.  It is noted that claimant's 
 
            forthright admission of this damaging testimony speaks well 
 
            of her truthfulness.  The record is woefully barren of 
 
            expert opinion as to whether this incident is in fact 
 
            significant and causally related to the original injury.  
 
            However, the two physicians who treated claimant immediately 
 
            following this incident, Drs. Heberer and Misol, give no 
 
            indication in chart notes that this particular incident has 
 
            significance.  Both speak rather in terms of cyclical 
 
            exacerbation or continued worsening.
 
            
 
                 On the record as it stands, it cannot be said that the 
 
            February 1990 incident constituted an intervening event.  
 
            While it is claimant's burden to prove that her present 
 
            condition is causally linked to the original injury, the 
 
            existence of a possible intervening event which also 
 
            contributes to disability benefits defendants.  When the 
 
            only medical evidence fails to establish the existence of an 
 
            extraneous event, defendants should bear some burden of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            persuasion in showing an extraneous contribution to 
 
            industrial disability or the continuation of healing period, 
 
            which may be intermittent and interrupted in nature, Willis 
 
            v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa 
 
            Industrial Commissioner Decisions 485 (1984).  Dr. Misol, 
 
            who treated claimant following this incident, has been shown 
 
            of record to be willing to directly answer questions put to 
 
            him by defendant American Motorists.  Defendants surely had 
 
            the power to produce a favorable medical opinion on this 
 
            issue if one has been formulated.  It has been held that if 
 
            a party has the ability to produce more explicit and direct 
 
            evidence than it does, it may be presumed that other 
 
            evidence would lay open deficiencies in its case.  Crosser 
 
            v. Iowa Dep't of Public Safety, 240 N.W.2d 682 (Iowa 1976).
 
            
 
                 Based then on these factors, it is held that claimant's 
 
            condition has improved and worsened from time to time since 
 
            the end of the first stage of her healing period (the date 
 
            of which is unimportant, since claimant seeks no further 
 
            benefits in that regard), and especially after February 21, 
 
            1990, when claimant suffered a worsening of her condition 
 
            which, on the basis of the slim evidence available, is shown 
 
            to be causally related to the work injury of March 1, 1989.
 
            
 
                 Accordingly, defendants shall be ordered to pay 
 
            additional healing period benefits at the stipulated rate of 
 
            $110.02 per week from February 21, 1990, and continuing 
 
            until such time as claimant's healing period comes to an end 
 
            as set forth in Iowa Code section 85.34(1).
 
            
 
                 Claimant's healing period is also affected by the need 
 
            for further medical attention.  Defendants shall be required 
 
            to pay the reasonable costs of treatment necessary for the 
 
            surgical treatment contemplated by Dr. Misol.  This benefit 
 
            is provided under Iowa Code section 85.27.  Defendants shall 
 
            also pay the medical bills set forth in joint exhibit 7, all 
 
            of which appear causally related to claimant's work injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In case number 926960:
 
            
 
                 Defendants shall pay unto claimant fourteen point one 
 
            four three (14.143) weeks of temporary total disability 
 
            benefits at the stipulated rate of one hundred thirty-one 
 
            and 37/100 dollars ($131.37) per week commencing October 6, 
 
            1989, totalling one thousand eight hundred fifty-seven and 
 
            97/100 dollars ($1,857.97).
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 In case number 916954:
 
            
 
                 Defendants shall pay unto claimant healing period 
 
            benefits at the stipulated rate of one hundred ten and 
 
            02/100 dollars ($110.02) per week commencing February 21, 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            1990, and continuing until that healing period ends by one 
 
            of the events set forth in Iowa Code section 85.34(1).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall pay all medical bills set forth in 
 
            joint exhibit 7 totalling eight hundred seventy-four and 
 
            91/100 dollars ($874.91).
 
            
 
                 The extent of claimant's industrial disability is not 
 
            currently determinable, as her healing period has not yet 
 
            ended.
 
            
 
                 The costs of each action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 1802; 2501
 
                           Filed July 25, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLENE C. TITUS,   :
 
                      :
 
                 Claimant, :
 
                      :         File Nos. 916954
 
            vs.       :                   926960
 
                      :
 
            HUSH PUPPY SHOES, a/k/a  :      A R B I T R A T I O N
 
            TODD'S NATURALIZERS,     :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.50; 1802; 2501
 
            Claimant suffered a herniated disc in March 1989, followed 
 
            by a second injury in October 1989 causing temporary total 
 
            disability.  In February 1990, she suffered an exacerbation 
 
            and surgery was recommended; however, defendants denied 
 
            authorization.
 
            It was noted that evidence was inadequate as to the 
 
            significance of this exacerbation.  Because the two treating 
 
            physicians did not accord this incident any particular 
 
            significance and because defendants had the ability to 
 
            present evidence if it actually was an extraneous and 
 
            intervening event, it was found that claimant's current 
 
            condition is causally related to the original injury.  
 
            Defendants were ordered to provide recommended surgical 
 
            treatment and claimant was held to be in a running healing 
 
            period.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL GIPE,                   :
 
                                          :       File No. 927099
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            GRIFFIN WHEEL,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Carol 
 
            Gipe, claimant, against Griffin Wheel, employer, a 
 
            self-insured defendant, for workers' compensation benefits 
 
            as a result of an alleged injury on September 1, 1989.  On 
 
            March 27, 1992, a hearing was held on claimant's petition 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On August 31, 1989, claimant received an injury 
 
            arising out of and in the course of employment with Griffin 
 
            Wheel.
 
            
 
                 2.  Claimant is entitled to either temporary total or 
 
            healing period benefits from September 1, 1989 through 
 
            September 18, 1991. 
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin as of September 19, 1991.
 
            
 
                 5.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $453.61 and she was married. 
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendant.
 
            
 
                                      ISSUES
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to permanent 
 
            disability benefits; and,
 
            
 
                 II.  The number of exemptions to which claimant is 
 
            entitled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the dis
 
            ability.  From her demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant has worked for Griffin Wheel for the last nine 
 
            years and continues to do so at the present time.  At the 
 
            time of the injury herein, she was performing the job of 
 
            gasket setter.  This job required claimant to pour rice 
 
            hauls into molds and break off the cover of molds using a 
 
            ramming rod.
 
            
 
                 On or about August 31, 1989, claimant injured her left 
 
            shoulder while pushing on the ramming rod.  Claimant 
 
            received initial treatment from a Dr. Kemp (first name 
 
            unknown) and Philip Wilson, M.D., a general practitioner.  
 
            She was then referred to an orthopedic surgeon, William G. 
 
            Quinn, M.D.  Dr. Quinn initially treated claimant conserva
 
            tively with medication, rest and shoulder injections.  
 
            However, when claimant's symptoms continued, he surgically 
 
            performed an acromioplasty in the left shoulder on January 
 
            3, 1990.  Claimant was slow to recover and did not return to 
 
            work until September 19, 1991.
 
            
 
                 The work injury of August 31, 1989, is a cause of a 
 
            significant permanent impairment to the shoulder and to the 
 
            body as a whole.  Although there is dispute among physicians 
 
            as to the numerical percentage of impairment (from 5-30 per
 
            cent of the shoulder), all agree that claimant in the future 
 
            is permanently restricted to light duty work.  Dr. Blair has 
 
            imposed restrictions consisting of no lifting over 10 pounds 
 
            with no repetitive lifting or arm work above the head.  In 
 
            late 1990, Dr. Wilson opined that claimant is restricted to 
 
            very light duty with no lifting over 10-15 pounds, no repet
 
            itive movement of the shoulder and only limited keyboard or 
 
            typing work.  Physical capability evaluations performed on 
 
            claimant by physical therapists in September 1990 and again 
 
            in August 1991 find claimant's lifting capabilities in the 
 
            range of 18-22 pounds from certain positions.  However, all 
 
            agree along with defendant's safety coordinator that 
 
            claimant's current restrictions preclude a return to the job 
 
            of gasket setting.
 
            
 
                 Claimant has had prior injuries at Griffin Wheel, one 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of which was to the shoulder in February 1988.  Although Dr. 
 
            Quinn opines that these prior injuries may have made 
 
            claimant more susceptible to injury, he could not apportion 
 
            the disability or retreat from his opinion that the work 
 
            injury of August 31, 1989, was a cause of his treatment and 
 
            the disability he found in claimant's shoulder.
 
            
 
                 Claimant is 49 years of age.  Claimant's past employ
 
            ment consists of bookkeeping and typing.  Claimant admitted 
 
            that she could do this today but Dr. Wilson indicated that 
 
            typing may be a problem.  Claimant's earnings as a book
 
            keeper was $4.25 per hour.  Claimant is a high school 
 
            graduate.
 
            
 
                 Due to claimant's motivation to return to work, she is 
 
            now employed.  Griffin Wheel has accommodated for claimant's 
 
            disability by assigning her to a new job of pourer within 
 
            her physician imposed work restrictions which largely con
 
            sists of pushing buttons to operate automatic equipment.  As 
 
            this job is more responsible, it pays approximately $.80 
 
            more per hour than her old gasket setter job.   
 
            Consequently, to date, other than for the period of time she 
 
            was off work, claimant has not lost actual earnings from the 
 
            work injury.
 
            
 
                 Claimant is precluded from 50 percent of the available 
 
            jobs at Griffin Wheel.  Claimant's testimony on this point 
 
            was not disputed.  Claimant's position appears suitable and 
 
            stable at the present time and she is 80th in seniority out 
 
            of a total of 160 employees at Griffin Wheel.
 
            
 
                 Due to resulting permanent impairment and primarily the 
 
            physician imposed work restrictions, the work injury of 
 
            August 31, 1989, is a cause of a 10 percent loss of earning 
 
            capacity, at this time.
 
            
 
                 At the time of the injury, claimant was married and 
 
            entitled to claim three exemptions on her tax return for 
 
            herself, her husband and one child.  Claimant's testimony 
 
            that she supports one child was unrebutted.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause of permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  Examination of several factors determines the 
 
            extent to which a work injury and a resulting medical 
 
            condition caused an industrial disability.  These factors 
 
            include the employee's medical condition prior to the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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.  See Peterson v. Truck Haven 
 
            Cafe, Inc. (Appeal Decision, Feb. 28, 1985).
 
            
 
                 A showing that claimant had no loss of actual earnings 
 
            does not preclude a finding of industrial disability. See 
 
            Michael v. Harrison County, 34 Biennial Report, Iowa Indus. 
 
            Comm'r 218, 220 (Appeal Decision 1979).  Bearce v. FMC 
 
            Corp., 465 N.W.2d 531 (Iowa 1991) only held that continued 
 
            employment with no loss of earnings is significant evidence 
 
            that should not be overlooked in measuring loss of earning 
 
            capacity.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 10 percent loss of her earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 50 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 10 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 Given a gross weekly rate of $453.61, marital status 
 
            and entitlement to three exemptions at the time of injury, 
 
            the Commissioner's published rate booklet for an injury dur
 
            ing FY 90 sets the rate of compensation at $287.65. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at a rate of two hun
 
            dred eighty-seven and 65/l00 dollars ($287.65) per week from 
 
            September 19, 1991.
 
            
 
                 2.  Defendant shall pay to claimant healing period ben
 
            efits for the stipulated time period to reflect the change 
 
            of rate herein.
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE                                           
 
            DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau Street
 
            Keokuk, Iowa  52632
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 20, 1992
 
                                          LARRY P. WALSHIRE
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL GIPE,                   :
 
                                          :       File No. 927099
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            GRIFFIN WHEEL,                :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803 Non-precedential, extent of disability case.
 
                      
 
 
            
 
            
 
            
 
            
 
            
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
           ____________________________________________________________
 
                                          :
 
            WALTER ZAHN,                  :
 
                                          :        File No. 927230
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            CEDAR RAPIDS MEATS d/b/a      :
 
            FARMSTEAD FOODS,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Walter Zahn, against his self-insured employer, 
 
            Cedar Rapids Meats d/b/a Farmstead Foods, defendant.  The 
 
            case was heard on April 7, 1992 at the Linn County 
 
            Courthouse in Cedar Rapids, Iowa.  The record consists of 
 
            the testimony of claimant.  The record also consists of the 
 
            testimony of John Hughes, vocational rehabilitation 
 
            counselor; the testimony of Deanna Halets, sister of 
 
            claimant; the testimony of Dennis Calvin, co-employee; 
 
            Marsha Zahn, spouse of claimant; and, Don Neal, acquaintance 
 
            of claimant.  Additionally, the record consists of 
 
            claimant's exhibits 1, 2, 7, 9, 10, 11, 12, 13 and 14.  The 
 
            record is also comprised of defendant's depositions marked 
 
            exhibit 1 and exhibits A, B, C, D, E, F, G, H, I, J and K.
 
            
 
                 Defendant filed a petition described by II United 
 
            States Code Section 301 (Chapter 11) in the United States 
 
            Bankruptcy Court for the Northern District of Iowa.  The 
 
            Commissioner of Insurance Division of Iowa was appointed 
 
            Trustee for the workers' compensation claimants of 
 
            defendant.  The Trustee, through its appointed attorney, 
 
            Charles D. Crook, waived the automatic stay and the case 
 
            proceeded to hearing.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:  1) Whether claimant 
 
            sustained an injury which arose out of and in the course of 
 
            his employment; 2) whether there is a causal relationship 
 
            between the alleged injury and any temporary or permanent 
 
            disability; and 3) whether claimant is entitled to any 
 
            healing period or permanent partial disability benefits.
 
            
 
                                   FINDINGS OF FACT
 
        
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 37 years old.  He is married with three 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            children.  Claimant completed the twelfth grade.  He 
 
            admitted he had a learning disability, but nevertheless, he 
 
            attended a machinist course at Kirkwood Community College.  
 
            However, he never completed his course of study.
 
            
 
                 Claimant commenced his employment with defendant in 
 
            1975.  He remained in defendant's employ until the plant 
 
            closed in 1990.
 
            
 
                 During the course of his employment with defendant, 
 
            claimant had sustained numerous cuts and scrapes.  He also 
 
            alleged that he had sustained at least one work-related back 
 
            injury.  Radiographic studies revealed degenerative disc 
 
            disease.
 
            
 
                 Claimant testified that he sustained a work-related 
 
            injury on August 8, 1989.  He stated he was returning from 
 
            the cafeteria and that he had just walked through the door 
 
            when he slipped on a piece of meat lying on the floor.  
 
            According to claimant, he hit the floor on his buttocks but 
 
            he jumped back up.  Then he returned to work for the 
 
            remainder of the day.  Claimant indicated he experienced 
 
            little pain that day but that he experienced soreness and 
 
            stiffness on the subsequent morning.
 
            
 
                 Claimant testified he worked the entire day on August 
 
            9, 1989, but that he had "more trouble" that evening.  He 
 
            stated he returned to work on August 10, 1989 and that he 
 
            worked all day but that he felt "lot worse" and that he had 
 
            a sharp pain shooting down his legs.
 
            
 
                 With respect to Friday, August 11, 1989, claimant 
 
            testified he wanted to work that day so he sought treatment 
 
            from the company nurse.  She applied "Icy Hot" to the lower 
 
            portion of claimant's back and sent claimant back to work.  
 
            He returned to the nurses' station on the same afternoon for 
 
            a second "Icy Hot" treatment.
 
            
 
                 Claimant testified he returned to work on Monday, 
 
            August 14, 1989 but that he was required to take Advil and 
 
            aspirins.
 
            
 
                 Claimant also testified he worked on August 15, 1989 
 
            and August 16, 1989 and he attempted work on August 17, 1989 
 
            but he was forced to leave work after visiting with the 
 
            plant nurse on several occasions.  Claimant was given an 
 
            appointment with J. Quetsch, M.D.  The physician removed 
 
            claimant from work and ordered physical therapy at St. 
 
            Luke's Hospital.
 
            
 
                 Dr. Quetsch referred claimant to J. W. Turner, M.D.  
 
            Claimant was restricted from working.  Dr. Turner released 
 
            claimant to return to work on November 27, 1989.  According 
 
            to claimant, he worked that day for 10 3/4 hours but his 
 
            back was sore.  Claimant returned to the company nurse who, 
 
            in turn, sent claimant home.  The nurse also referred 
 
            claimant to InstaCare for an evaluation.
 
            
 
                 In his note of December 21, 1989, Dr. Turner opined:
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 21 Dec 89:  Recheck.  Patient says he is now 
 
                 feeling good.  Has not been doing any bending or 
 
                 lifting.  His EMG studies are within normal limits 
 
                 and he shows no evidence of any permanent 
 
                 neurological damage.
 
            
 
                 At this point I feel that we have now documented 
 
                 with the MR that he has a small L5-Sl disc bulge.  
 
                 Currently his exam reveals totally negative 
 
                 straight leg raising, symmetrical deep tendon 
 
                 reflexes, 1+ at both ankles, 2+ at both knees.  He 
 
                 has no motor weakness.  The patient failed to 
 
                 return to work after work hardening and rehab 
 
                 primarily, I think, because of the multiple repeti
 
                 tions.  At this point I do not feel that surgical 
 
                 intervention, that is laminectomy or laminectomy 
 
                 and fusion, would allow the patient to return to 
 
                 work at an unlimited basis.  It is, therefore, my 
 
                 recommendation that the patient seek other 
 
                 employment.  We discussed this.  He says he has 
 
                 already talked to Mr. Hughes about rehab.  I feel 
 
                 his ultimate lifting restrictions will be in the 
 
                 30 lb. range with only a moderate number of 
 
                 repetitions.  Because of the persistence of pain 
 
                 with heavy work, I feel that he does have a 
 
                 permanent impairmency [sic] from his history of 
 
                 disc herniation and for that it is my opinion that 
 
                 he has a 10 percent permanent and partial 
 
                 impairmency [sic] as a person as a whole, 
 
                 primarily because of the residuals of intermittent 
 
                 pain.  I would hope that with this information 
 
                 that the patient is now able to proceed with 
 
                 resolution of this case and copies will be 
 
                 forwarded to Mr. Hughes as well as to his 
 
                 employer.
 
            
 
            (Defendant's Exhibit A, page 9)
 
            
 
                 Claimant never returned to defendant's employ after 
 
            November 27, 1989.  He participated, in part, with the Iowa 
 
            Department of Vocational Rehabilitation.  However, claimant 
 
            did not want to pursue the recommendations of his counselor, 
 
            John Hughes.  Mr. Hughes had suggested training in the food 
 
            service industry.  Claimant desired to own his own small 
 
            business.  He testified he would like to own a hot dog 
 
            stand.  Other evidence indicated  claimant wanted to travel 
 
            to flea markets where he would sell glass etchings, 
 
            woodworking and jewelry of his own making.
 
            
 
                 Subsequent to his last day of employment, claimant had 
 
            engaged in intermittent causal contract labor.  He had 
 
            contracted to perform mechanical work on various vehicles 
 
            belonging to acquaintances.  He had done lawn mowing and/or 
 
            snow shoveling for a day care center and he had performed 
 
            small maintenance jobs for the same center.
 
            
 
                 As of the date of the hearing, claimant was unemployed.  
 
            There was no evidence presented which established that 
 
            claimant had completed any bona fide job applications.  
 
            Claimant did not appear particularly motivated.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained a work-related injury which arises out of and in 
 
            the course of his employment.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant appeared at the hearing and testified to 
 
            suffering a traumatic event.  Defendant denied that the 
 
            injury occurred.  Defendant also raised the sub-issue of the 
 
            credibility of claimant.
 
            
 
                 As in every case, the credibility of a witness is 
 
            always an issue.  Claimant, quite simply, was not credible.  
 
            He made inconsistent statements relative to the alleged 
 
            incidents.  Firstly, claimant claimed he was injured on 
 
            August 8, 1989.  Nevertheless, the evidence did not support 
 
            the reporting of the alleged work incident until nine days 
 
            later.  This deputy finds it inconceivable that on the day 
 
            in question, (August 8, 1989) claimant twice reported to the 
 
            company nurse for a torn cuticle but he did not report a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            slip and fall, nor did he seek any medical attention for any 
 
            alleged back condition.  His past medical file at the plant 
 
            reveals numerous visits to the company nurse for very minor 
 
            matters.  It seems unlikely that he would not seek first aid 
 
            for a much more serious trauma.
 
            
 
                 It is also inconceivable to the undersigned that 
 
            claimant twice reported "recurrent back pain" to the nurse 
 
            on August 11, 1989 and twice on August 16, 1989, yet he 
 
            never mentioned the alleged fall until August 17, 1989 and 
 
            even then, claimant reported, " 9 days ago slipped going 
 
            down stairs: caught himself...."  His version of slipping 
 
            while walking down the stairs is inconsistent with his 
 
            rendition at hearing.  For at hearing, claimant claimed he 
 
            slipped after leaving the cafeteria and exiting through a 
 
            doorway.  This is quite a different version.  Claimant's 
 
            inconsistent statements and his inconsistent behavior make 
 
            it impossible to support his recovery in the case.  Where 
 
            the versions of the injury change, one cannot tell which 
 
            version, if any, is believable.  This is especially true in 
 
            light of the fact that on June 6, 1989 claimant sought 
 
            medical attention at St. Luke's Hospital for a back 
 
            condition.  It is also especially relevant since claimant 
 
            has denied slipping while working at Daffy Dean's Amusement 
 
            Rides in June of 1989 but there were several witnesses who 
 
            testified that claimant had reported the slip to them.
 
            
 
                 Claimant's subsequent behavior does not inspire 
 
            confidence in his truthfulness.  He has testified that he 
 
            can not return to factory work because of his back 
 
            condition.  Nevertheless, claimant is able to push over a 
 
            refrigerator, lift an engine block, push a water heater, 
 
            work on cars, including brake work , shovel snow, mow lawns, 
 
            pick tomatoes, and carry 4 foot by 8 foot sheets of plywood, 
 
            either alone or with the assistance of one other person.  
 
            Such behavior does not characterize an individual who is 
 
            suffering from a back condition.  He has been less than 
 
            candid.  Claimant is not credible.
 
            
 
                 Claimant has failed to meet his burden of proof that he 
 
            has sustained a work-related injury which arises out of and 
 
            in the course of his employment.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs are taxed to claimant pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. D. J. Smith
 
            Attorney at Law
 
            121 3rd Street SW
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. Jack C. Paige
 
            Mr. Thomas J. Wilkinson, Jr.
 
            Attorneys at Law
 
            700 Higley Building
 
            P O Box 1968
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Thomas J. Lallier
 
            Attorney at Law
 
            1600 TCF Tower
 
            Minneapolis, Minnesota  55402
 
            
 
            Mr. Charles S. Crook, III
 
            Attorney at Law
 
            Fleming Building Suite 1100
 
            218 Sixth Avenue
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1400; 3700
 
                                                 Filed July 30, 1992
 
                                                 MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WALTER ZAHN,                  :
 
                                          :        File No. 927230
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            CEDAR RAPIDS MEATS d/b/a      :
 
            FARMSTEAD FOODS,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1100; 1400; 3700
 
            Claimant was unable to prove by a preponderance of the 
 
            evidence that he had sustained a work-related injury on 
 
            August 8, 1989.  Claimant was not credible.  Claimant gave 
 
            inconsistent statements.  He engaged in inconsistent 
 
            behavior.