Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
                                          :
 
            RONALD PANNKUK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 927407
 
            OGDEN NEWSPAPERS OF IOWA,     :
 
            INC., a/k/a FORT DODGE        :
 
            MESSENGER, a/k/a FORT DODGE   :    A R B I T R A T I O N
 
            CONSUMER NEWS, INCL., a/k/a   :
 
            THE MESSENGER,                :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 25, 1991, in 
 
            Fort Dodge, Iowa.  The parties agreed before the actual 
 
            hearing that they would submit this case to the undersigned 
 
            upon stipulated facts and that would be the extent of the 
 
            record.  The parties were to file briefs.  This is a 
 
            proceeding in arbitration wherein claimant seeks resolution 
 
            as to whether an employer/employee relationship existed and 
 
            within this issue, depending on the resolution of the same, 
 
            whether any injury arose out of and in the course of 
 
            claimant's employment.  The record consists of both parties 
 
            filing a stipulation of the facts on August 22, 1991, with 
 
            joint exhibits A, B and C attached thereto.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether an employer/employee relationship existed 
 
            between the claimant and the defendant employer, or whether 
 
            claimant was operating as an independent contractor; and
 
            
 
                 2.  That if an employer/employee relationship is found, 
 
            whether claimant's injury arose out of and in the course of 
 
            his employment.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned incorporates the parties' stipulation 
 
            of facts which are in specific and concise terms as the same 
 
            are basically set out herein:
 
            
 
                 1.  Claimant has worked for defendant, Fort Dodge 
 
                 Messenger, in two separate capacities.
 
            
 
                 2.  For the period from June 20, 1980 to May 11, 
 
                 1991, claimant was employed by defendant, Fort 
 
                 Dodge Messenger, as a part-time mail room clerk.  
 
                 Claimant's demand for benefits does not arise from 
 
                 his duties as a mail room clerk.
 
            
 
                 3.  Beginning September 9, 1980, claimant began 
 
                 delivering newspapers for defendant, Fort Dodge 
 
                 Messenger, on a designated route.  The injuries 
 
                 which are the subject of this action arose during 
 
                 the course of claimant's duties as a newspaper 
 
                 carrier.
 
            
 
                 4.  Claimant was injured on December 28, 1988, 
 
                 when he fell down an ice covered slope just off 
 
                 the roadway of Deurth Street, in Fort Dodge, Iowa, 
 
                 while delivering the Fort Dodge Messenger.
 
            
 
                 5.  Claimant was treated for a closed transverse 
 
                 right patellar fracture.  An open reduction 
 
                 internal fixation was performed with no 
 
                 complications.
 
            
 
                 6.  Claimant did not perform duties as a newspaper 
 
                 carrier after September 29, 1988.
 
            
 
                 7.  When claimant agreed to be a newspapers 
 
                 carrier for defendant, Fort Dodge Messenger, he 
 
                 entered into a contract, which is referred to as 
 
                 Exhibit "A".  Claimant was also provided with a 
 
                 Carrier Guide, which is referred to as Exhibit 
 
                 "B".  There are no other documents defining the 
 
                 duties and obligations of claimant as a carrier.
 
            
 
                 8.  Carriers may sign up new subscribers.  If 
 
                 subscribers subscribe directly with the newspaper, 
 
                 the newspaper advises the carrier directly to 
 
                 begin delivery to the new subscriber of "start."
 
            
 
                 9.  Carrier's only compensation is the profit they 
 
                 make on the sale of the newspapers they deliver.  
 
                 Carriers purchase the newspapers at the wholesale 
 
                 rate and sell the newspapers to their route 
 
                 subscribers at the retail rate prescribed by the 
 
                 Fort Dodge Messenger.  If subscribers elect to pay 
 
                 the newspaper directly in advance (a practice 
 
                 referred to as "PIA"), the carriers receive a 
 
                 credit for such payment on their bill for papers 
 
                 purchased.
 
            
 
                 10.  The newspaper communicates with carriers 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 about delivers by the use of memo slips included 
 
                 in the carrier's daily bundles of newspapers.  
 
                 This form is referred to as Exhibit "C".
 
            
 
                 11.  Claimant has a history of special education.
 
            
 
                 12.  Claimant injured his thumb on February 2, 
 
                 1986 while working in his capacity as a part-time 
 
                 mail room clerk for the defendant, Fort Dodge 
 
                 Messenger, and was paid workers' compensation for 
 
                 that injury.
 
            
 
                 Both parties cited the case of LeFleur v. Sioux City 
 
            Newspapers, Inc., 452 N.W.2d 406 (1990) as the most recent 
 
            Iowa Supreme Court case that addressed issues similar to the 
 
            case herein.  Each party looked at this case differently as 
 
            it applies to the facts of the case at bar.  The undersigned 
 
            believes this case does address the applicability of the 
 
            current law to the facts stipulated by the parties.  
 
            Although claimant referred to older cases and other cases 
 
            outside the jurisdiction of Iowa and, also, to the 
 
            restatement of agency, the undersigned believes the LeFleur 
 
            case is the guideline which should be applied to this case 
 
            at bar.
 
            
 
                 The right to control details or performances is a 
 
            crucial factor in determining the status of an individual 
 
            who performs services for another and is one of the more 
 
            influencing determining factors to decide whether one is an 
 
            independent contractor or is in an employer/employee 
 
            relationship.
 
            
 
                 Claimant signed a contract with defendant employer.  It 
 
            is not what one calls something that necessarily determines 
 
            the real situation, but it is what in fact is the intent of 
 
            the parties or the ultimate result.  The mere fact that one 
 
            calls a relationship an independent contractor relationship 
 
            or an employer/employee relationship does not mean that it 
 
            is, as the parties call it. One must look at other 
 
            particulars to determine whether what the parties called 
 
            something is in fact what the relationship or thing really 
 
            is.  Oftentimes, there is a disadvantage between the parties 
 
            as far as bargaining ability, etc., that might force one to 
 
            accept a definition contrary to what it really is under the 
 
            law.
 
            
 
                 Claimant contends that exhibit B, the Messenger's Care 
 
            Guide, is evidence in itself that defendant employer 
 
            controlled claimant.  Things such as the ability to cancel 
 
            the lease at any time for a good reason should the carrier 
 
            fail to comply with the details of the Carrier Guide, the 
 
            recommended times of delivery, how collection should be 
 
            made, protection of papers from the elements, and the 
 
            prevention of the carrier from delivering other 
 
            publications, etc., claimant believes are evidence of this 
 
            control.
 
            
 
                 The undersigned finds that it is not unreasonable in 
 
            the types of contractual agreements as in this case at bar 
 
            that guides are and should be given for the benefit of all 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            parties involved.  This is common in instances where there 
 
            is no question of the existence of an independent contractor 
 
            relationship.  This is seen in cases where one sells 
 
            appliances or cars or other pieces of equipment or items of 
 
            merchandise in which suggested manners of selling, use, 
 
            applicability of warranties, advisability of use of the 
 
            product, cleaning the product, and maintenance of the 
 
            product are given by the manufacturer or wholesaler.  This 
 
            guide should be appreciated rather than used against the 
 
            provider of the same.  In the situation of a newspaper, this 
 
            can be even more applicable since you often have minors or 
 
            young people delivering the paper.  In the case at bar, we 
 
            happen to have an adult but as pointed out by the claimant, 
 
            the adult has gone through special education.
 
            
 
                 It is not uncommon in independent contractor situations 
 
            that guides are given by a manufacturer or provider of a 
 
            product. If the product provided is misused, misrepresented 
 
            or the distributor to the public performs such action that 
 
            is detrimental to reputation of the product of the 
 
            manufacturer or wholesaler, that distributor's right can be 
 
            and often is cancelled or discontinued.  This is true if 
 
            there is a contractual relationship for providing certain 
 
            products.  The undersigned finds that the guides provided by 
 
            the defendant newspaper company herein is not exercising 
 
            control so as to make the newspaper an employer of the 
 
            claimant.  Many of the guides are suggestions that would be 
 
            common sense to most individuals and that a newspaper 
 
            carrier should want to do those things for its own benefit.  
 
            This extra precaution on behalf of the newspaper company 
 
            does not mean it is trying to control, under the law, the 
 
            newspaper carrier so as to set up an employer/employee 
 
            relationship.
 
            
 
                 The contract itself specifically states that the 
 
            parties are entering into an independent contractor 
 
            situation, even though as mentioned earlier, it is what a 
 
            situation is, not what it is called.  It is obvious that the 
 
            parties began with that being the intent and there is 
 
            nothing in the evidence that the undersigned finds would 
 
            change that original intent in the contract.
 
            
 
                 The mere fact that the defendant newspaper provided 
 
            supplies at minimum cost is not an indication that they were 
 
            in fact an employer of the claimant.  Claimant was to get 
 
            his own supplies at his own expense.  The newspaper 
 
            obviously would provide as a matter of common sense the 
 
            newspapers for claimant to deliver.  As to providing rubber 
 
            bands, sacks and other items at minimal cost, this is a 
 
            convenience to the claimant and obviously there is no 
 
            indication that the claimant could get them cheaper 
 
            elsewhere.  There is also no indication that the claimant 
 
            had to buy these items other than newspapers from the 
 
            newspaper company.
 
            
 
                 The claimant could have purchased them from some other 
 
            source.
 
            
 
                 Claimant assumed the risk of profit and loss with the 
 
            purchase at wholesale and resale at retail.  The carrier was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            solely responsible for the risk of collection and all 
 
            expenses incurred.  The carrier received no other form of 
 
            compensation such as salary, commission or employee 
 
            benefits.  There is a difference between orders and 
 
            suggestions.  The evidence is clear that the defendant 
 
            newspaper provided suggestions in the carrier guide as to 
 
            how the claimant could successfully perform the job.  The 
 
            undersigned finds that these suggestions were not evidence 
 
            of control as to necessitate or establish and 
 
            employer/employee relationship.  The undersigned finds that 
 
            claimant was free to do the work without being subject to 
 
            the order of the person hiring him as to details.
 
            
 
                 Although the defendant newspaper company accommodated 
 
            the claimant by allowing the people to prepay for the paper, 
 
            the claimant was given credit on his account.  There was no 
 
            federal or state tax or any social security withheld.  
 
            Defendant newspaper made no suggestions about the delivery 
 
            procedure as to whether the claimant could have someone help 
 
            him in the delivery.
 
            
 
                 The closest element of control, if any, would be the 
 
            condition that the claimant was not to deliver anyone else's 
 
            paper or product at the time he was delivering the newspaper 
 
            for defendant employer unless it had the written agreement 
 
            of the defendant newspaper company.  It would seem that 
 
            claimant should be able to do whatever else he wanted to do 
 
            at the time he was delivering the newspapers as long as it 
 
            didn't interfere with his contractual arrangement with the 
 
            newspaper company.  The undersigned can see the reason for 
 
            this provision in that there could be contradictory or 
 
            detrimental items delivered at the same time by the claimant 
 
            that might reflect on the defendant newspaper company.  
 
            Although it might have been better if item 9 on the 
 
            Messenger's carrier lease, exhibit A, which is the same 
 
            paragraph in item 9 on page 2 of the carrier agreement, 
 
            which is a part of exhibit B, if the additional words "which 
 
            consent will not be unreasonably withheld," would have been 
 
            added.  The undersigned still believes that this one item is 
 
            not sufficient control as to establish claimant as an 
 
            employee.
 
            
 
                 The undersigned finds that the greater weight of 
 
            evidence, considering the stipulations of the parties and 
 
            exhibits, that claimant had as a distinct nature of his 
 
            business, a right to employ help or assistance and that only 
 
            he would have the right to supervise their activities and 
 
            would be responsible for their actions.  Claimant had the 
 
            obligation to furnish any necessary tools, supplies or 
 
            materials other than the newspapers which claimant obviously 
 
            had to purchase from defendant newspaper company.  Claimant 
 
            also had the right to control the progress of the work 
 
            except as to the final results.  The time for which he 
 
            worked was basically controlled by the claimant other than 
 
            there were guides and suggestions as to the time certain 
 
            deliveries should be made.  As far as the matter of 
 
            collecting the money and when it was collected, it was 
 
            strictly under the control of claimant who took all the 
 
            risks if he failed to make the collections timely.  It 
 
            directly affected his profit.  Under the agreement, if he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            failed to collect, it did not affect the defendant newspaper 
 
            company as the claimant was obligated to pay the newspaper 
 
            company regardless of whether claimant collected the money 
 
            from his customers or not.  The undersigned finds that the 
 
            overwhelming weight of the evidence shows that claimant was 
 
            an independent contractor and not an employee of the 
 
            defendant newspaper company.
 
            
 
                 The issue of independent contractor versus 
 
            employer/employee relationship having been decided, it makes 
 
            the issue as to whether claimant incurred an injury that 
 
            arose out of and in the course of employment moot.
 
            
 
                                conclusions of law
 
            
 
                 An independent contractor is one who carries on an 
 
            independent business.  Mallinger v. Webster City Oil Co., 21 
 
            Iowa 847, 851, 234 N.W. 254, 257 (1929).  There are eight 
 
            factors which are considered.  Henderson v. Jennie Edmundson 
 
            Hospital, 178 N.W.2d 429 (Iowa 1970); Nelson v. Cities 
 
            Services Oil Co., 259 Iowa 1209, 146 N.W.2d 201 (Iowa 1967); 
 
            LeFleur v. Sioux City Newspapers, Inc., 452 N.W.2d 406 
 
            (1991).
 
            
 
                 It is further concluded:
 
            
 
                 That claimant was an independent contractor and was not 
 
            an employee of defendant Ogden Newspapers of Iowa, Inc., 
 
            a/k/a Fort Dodge Messenger, a/k/a Fort Dodge Consumer News, 
 
            Inc., a/k/a The Messenger.
 
            
 
                                      order
 
            
 
                 Therefore, it is ordered:
 
            
 
                 That judgement is entered against the claimant and 
 
            costs are taxed to claimant.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Timm W Reid
 
            Attorney at Law
 
            300 Walnut St
 
            Des Moines IA 50309
 
            
 
            Mr Robert C Landess
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2002
 
                      Filed November 8, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
                                          :
 
            RONALD PANNKUK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 927407
 
            OGDEN NEWSPAPERS OF IOWA,     :
 
            INC., a/k/a FORT DODGE        :
 
            MESSENGER, a/k/a FORT DODGE   :    A R B I T R A T I O N
 
            CONSUMER NEWS, INCL., a/k/a   :
 
            THE MESSENGER,                :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2002
 
            Found newspaper carrier was an independent contractor and 
 
            not an employee.
 
            Both parties cited the recent case of LaFleur v. Sioux City 
 
            Newspapers, Inc., 452 N.W.2d 406 (1991) to support their 
 
            position.  This case was submitted on a stipulated record.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARILY JEAN KALBACH,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 927435
 
            ALDI, INC.,    
 
                                                 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 October 29, 1992 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 July, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market St.
 
            Oskaloosa, Iowa 52577-2891
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  9998
 
                                                  Filed July 28, 1992
 
                                                  Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARILY JEAN KALBACH,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 927435
 
            ALDI, INC.,    
 
                                                  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 October 
 
            29, 1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.60; 5-2500; 5-1803
 
                      Filed May 14, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHEILA EGELAND, a/k/a    :
 
            SHEILA BORTVIT,     :
 
                      :
 
                 Claimant, :
 
                      :     File Nos. 920625
 
            vs.       :               927446
 
                      :
 
            ROSEWOOD MANOR,     :    A R B I T R A T I O N
 
                      :
 
                 Employer, :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            ALLIED GROUP INSURANCE,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1402.60, 5-2500
 
            Claimant did not carry her burden in connection with her 
 
            claim for payment of medical expenses.  The employer placed 
 
            in issue reasonableness, fairness and necessity.  One bill 
 
            was for services unrelated to the work injury, a second bill 
 
            was for an MRI study for unknown purposes and a third bill 
 
            was for medication where the prescribing doctor was unknown 
 
            and the only testimony regarding the reasonableness of that 
 
            charge came from claimant.  
 
            
 
            5-1803
 
            Claimant, a 21-year-old high school honor graduate with an 
 
            injury to her shoulder with a functional impairment rating 
 
            of between 3 percent and 20 percent, with a functional pain 
 
            overlay described by a pyschiatrist as secondary to gain 
 
            factors, with restrictions due primarily to pain rather than 
 
            an organic cause, low motivation, and a preinjury wage of 
 
            $4.45 per hour was awarded a 10 percent industrial 
 
            disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL MARK,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 927456
 
            MODERN HOG CONCEPTS,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            USF&G INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            Mark, claimant, against Modern Hog Concepts, employer 
 
            (hereinafter referred to as MHC), and United States Fidelity 
 
            and Guaranty, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            October 30, 1989.  On January 23, 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 October 30, 1989, claimant received an injury 
 
            arising out of and in the course of employment with MHC.
 
            
 
                 2. With reference to claimant's claim for temporary 
 
            total or healing period benefits, it was agreed at hearing 
 
            that claimant was off work and not employed in any capacity 
 
            from November 9, 1989 through March 14, 1990.  Claimant then 
 
            returned to work at MHC on March 15, 1990 and continued 
 
            working through March 28, 1990, at which time claimant left 
 
            work again.  Since March 29, 1990, claimant has not been 
 
            employed by MHC.
 
            
 
                 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.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $391.65; he was married; and, he was 
 
            entitled to two exemptions.  This establishes a weekly rate 
 

 
            
 
            Page   2
 
            
 
            
 
            of compensation in the amount of $247.99, according to the 
 
            industrial commissioner's published rate booklet for FY 90.
 
            
 
                 5.  The fees charged in the medical bills submitted by 
 
            claimant at the hearing were fair and reasonable.
 
            
 
                 It should be noted that claimant at hearing withdrew 
 
            his claim for workers' compensation benefits arising from 
 
            any psychological problems.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to disability 
 
            benefits; and,
 
            
 
                 II. The extent of claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27 and 85.39.
 
            
 
                                 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 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is credible.
 
            
 
                 Claimant worked for MHC from September 1984 until March 
 
            28, 1990, when he left work upon the advice of his physi
 
            cians.  Claimant has not returned to MHC since that time.  
 
            MHC is engaged in manufacturing of hog feeding equipment.  
 
            At the time of the injury, claimant was a supervisor over 
 
            sheet metal workers.  This position also required claimant 
 
            to perform extensive production work himself.  The work 
 
            involved the moving, cutting, and bending of sheets of metal 
 
            to size and shape according to blueprints.  Such work 
 
            required heavy and repetitive lifting, repetitive movement 
 
            of his neck and over-shoulder work with his arms 
 
            
 
                 On or about October 30, 1989, claimant injured his cer
 
            vical spine from his repetitive lifting at MHC.  This injury 
 
            consisted of a herniated disc at one level of the spine and 
 
            aggravations of degenerative disc disease at several other 
 
            levels of the cervical spine.  In October 1989, claimant 
 
            began to experience tingling and numbness in the left hand 
 
            and arm.  Claimant  initially was treated by a chiropractor, 
 
            Jerry J. Smith, D.C., for several weeks with a diagnosis of 
 
            cervical strain.  As Dr. Smith imposed a 10 pound work 
 
            restriction, claimant was taken off work.  In November 1989, 
 
            he also began treating with his family doctor, Greg Bartel, 
 
            M.D., who diagnosed cervical nerve entrapment on the left 
 
            side from possible degenerative disc disease or thoracic 
 
            outlet syndrome related to wear and tear at work.  After 
 
            x-rays revealed severely degenerated discs at several levels 
 
            of claimant's upper spine, claimant remained off work.  With 
 
            continued complaints of neck and arm pain and numbness, 
 

 
            
 
            Page   3
 
            
 
            
 
            severe headaches, weakness, coolness and discoloration of 
 
            the left arm, claimant was referred to a neurosurgeon, David 
 
            Beck, M.D., who examined claimant in January 1990.  Upon a 
 
            diagnosis of a herniated disc at one spinal level, he per
 
            form fusion surgery on claimant's neck.
 
            
 
                 In March 1990, Dr. Beck's review of MRI scans indicated 
 
            that the fusion healed and he released claimant back to work 
 
            without restrictions.  Claimant did not return to his former 
 
            position as it was given to someone else so he returned at 
 
            lower pay to a different manual labor position.  After only 
 
            a few days, claimant's symptoms returned and he was again 
 
            taken off work by Dr. Beck.  In May 1990, claimant was eval
 
            uated by a J. Michael Donahue, M.D., an orthopedist.  Dr. 
 
            Donahue felt that claimant at that time still had not 
 
            reached maximum healing.  It was not until October 10, 1990, 
 
            that Dr. Beck last released claimant to return to work and 
 
            at that time he imposed permanent work restrictions against 
 
            repetitive movement of the head and neck, lifting over 25 
 
            pounds and over-shoulder work.  Due to his restrictions, 
 
            claimant was not allowed to return to MHC.
 
            
 
                 Upon continued complaints of neck pain, arm weakness 
 
            and numbness along with severe headaches, claimant was eval
 
            uated in February 1991 by another orthopedic surgeon, Rodney 
 
            Johnson, M.D.  Initially, Dr. Johnson treated claimant  with 
 
            an epidural steroid injection but this procedure failed to 
 
            alleviate the problems.  From his further testing, Dr. 
 
            Johnson believes that the fusion performed by Dr. Beck may 
 
            not have been successful in uniting the bone fragments used 
 
            in the procedure.  He recommended a further testing proce
 
            dure called a discography or discogram to locate the source 
 
            of the problem and further surgery to re-fuse the vertebra 
 
            if that is found to be the problem.  When told of Dr. 
 
            Johnson's views, Dr. Beck stated that he did not review the 
 
            most recent tests but suggested another opinion.
 
            
 
                 Claimant was then referred to David Boarini, M.D., 
 
            another neurosurgeon.  Dr. Boarini disagreed with Dr. 
 
            Johnson stating that further testing is unnecessary noting 
 
            that claimant has a functional overlay or psychological com
 
            ponent to his complaints.  The doctor however recommended a 
 
            new EMG test to "clear the air."  This test was performed in 
 
            January 1992 with no evidence of nerve entrapment or radicu
 
            lopathy.  However, W. C. Koenig, Jr., M.D., a neurologist, 
 
            found from this test mild carpal and cubital tunnel syn
 
            drome.  This was the first time claimant had been diagnosed 
 
            as suffering from these syndromes.  The medical records fail 
 
            to show what treatment, if any, is suggested for these prob
 
            lems or its relationship to claimant's past complaints.
 
            
 
                 With reference to claimant's psychological problems, 
 
            claimant has been diagnosed by mental health practitioners 
 
            as suffering from mental depression due to the stress of 
 
            dealing with his pain and disability as well as dealing with 
 
            our workers' compensation system.  Claimant had a history of 
 
            recurrent depression since childhood according to the medi
 
            cal records submitted into evidence.
 
            
 
                 Claimant had no neck or cervical spine injuries or dif
 
            ficulties prior to October 1989.  Claimant appeared credible 
 
            on this matter and the records in evidence support this 
 

 
            
 
            Page   4
 
            
 
            
 
            finding.  Claimant has had low back problems in the past but 
 
            these problems had no affect upon his employability.
 
            
 
                 It is found that claimant's hand, arm, shoulder and 
 
            upper back or cervical problems treated or evaluated by Drs. 
 
            Smith, Brunkhorst, Bartel, Beck, Donahue, Johnson, Boarini 
 
            and Koenig are causally connected to the work injury of 
 
            October 30, 1989.  The treatments rendered to claimant by 
 
            these physicians were reasonable and necessary.  Physician 
 
            opinions causally connecting claimant's problems first expe
 
            rienced at work in October 1989 are uncontroverted.
 
            
 
                 It is found that claimant's maximum healing from the 
 
            injury of October 30, 1989 ended on October 10, 1990.  This 
 
            finding is based upon the views of Dr. Beck, the primary 
 
            treating physician and the doctor who performed the surgery 
 
            on claimant's neck.  Although claimant worked briefly for 
 
            two weeks for an auto repair shop in October and November 
 
            1990, claimant was not employed between March 29, 1990 
 
            through October 10, 1990.  During this time, physicians 
 
            expected claimant to improve with treatment modalities pre
 
            scribed by them.
 
            
 
                 It is found that the work injury of October 30, 1989, 
 
            was a cause of a 8-12 percent permanent impairment to the 
 
            body as a whole.  This is based upon the ratings of Dr. Beck 
 
            and Dr. Johnson, the only physicians to provide an opinion 
 
            as to the extent of permanent partial impairment.  Also, 
 
            claimant is unable to perform physical activities consisting 
 
            of repetitive movement of the neck and head, lifting over 25 
 
            pounds and repetitive over-shoulder work.  Claimant had no 
 
            prior work injuries or permanent impairment to his cervical 
 
            spine.
 
            
 
                 The undersigned was unable to find that claimant is in 
 
            need of further tests or surgery.  Although he certainly is 
 
            a well qualified physician, Dr. Johnson's single view could 
 
            not be given greater weight over the views of both Drs. Beck 
 
            and Boarini.  Also, Dr. Boarini noted a functional overlay 
 
            or psychological component to claimant's continuing symp
 
            toms.  In his deposition testimony, Dr. Johnson was unaware 
 
            of claimant's past psychological problems and admitted he 
 
            should have known this before.  In any event, it is found 
 
            that Dr. Johnson's evaluation and treatment constituted rea
 
            sonable and necessary treatment of claimant's arm and neck 
 
            conditions and is work-related.
 
            
 
                 The following findings are made with reference to 
 
            claimant's industrial disability:  Claimant's medical condi
 
            tion before the work injury was excellent and he had no 
 
            functional impairments or ascertainable disabilities.  
 
            Claimant was able to fully perform physical tasks involving 
 
            heavy and repetitive lifting, repetitive neck and head move
 
            ment and over-shoulder work.  Due to his physical limita
 
            tions, claimant is unable to perform his former work or any 
 
            other work requiring claimant to violate his work restric
 
            tions.  Claimant is 45 years of age.  Claimant has a high 
 
            school education.  Claimant's past employment is widely var
 
            ied consisting of newspaper delivery; auto and truck mainte
 
            nance and repair; handyman work; work with retail lumber 
 
            customers; warehouse work; delivery truck driving; produc
 
            tion foreman; merchandise window display work; and, service 
 

 
            
 
            Page   5
 
            
 
            
 
            station attendant.  Many of these jobs claimant cannot per
 
            form today due to his physical limitations.  He unsuccess
 
            fully attempted auto repair work in October and November of 
 
            1990 but was terminated after 80 hours of work due to his 
 
            physical limitations.  However, there are many jobs he still 
 
            could perform.  Claimant has past management experience in a 
 
            factory setting.  Claimant also appears to have a great deal 
 
            of potential for retraining.  His GATB testing indicates he 
 
            is capable of post-graduate college work and claimant agreed 
 
            at hearing that he probably could intellectually perform 
 
            college level studies.
 
            
 
                 Claimant has suffered a large loss of earnings in not 
 
            being able to return to MHC.  Claimant currently is employed 
 
            with his wife in the pick up and delivery of newspapers.  
 
            Although his wife is officially the employee of the newspa
 
            pers, claimant explained that his wife could not perform the 
 
            work without him due to her night blindness.  He also said 
 
            that he could not perform the work without her due to his 
 
            inability to turn his head to view traffic.  Claimant's 
 
            earnings dropped from over $16,000 in 1989 to his portion of 
 
            the $6,000 to $9,000 in gross income both he and his wife 
 
            currently receive from their newspaper delivery employment.  
 
            Claimant has not sought employment on his own since his ter
 
            mination from the auto repair shop in November 1990.
 
            
 
                 A vocational rehabilitation firm was retained by defen
 
            dants for claimant but they did little to find claimant 
 
            suitable work outside of the MHC.  When a successful return 
 
            to MHC became impossible due to restrictions imposed by Dr. 
 
            Beck, vocational counseling appeared to end.
 
            
 
                 Claimant certainly has a psychological component to his 
 
            continuing complaints and is experiencing chronic pain syn
 
            drome.  In the experience of this deputy commissioner, such 
 
            a syndrome is devastating and can only be broken with 
 
            aggressive physical therapy such as work hardening and a 
 
            return to the work force.  Claimant has rejected work hard
 
            ening and his decision to do so was supported in this deci
 
            sion by some of his physicians.
 
            
 
                 Given his past experience, current restrictions and 
 
            mental abilities, he is employable in the labor market with 
 
            some effort on his part.  However, the fact remains that his 
 
            employer failed to accommodate for his disability which was 
 
            caused by a work injury through no fault of claimant.  His 
 
            disability is significant and will be compensated herein.
 
            
 
                 Therefore, due to resulting permanent impairment and 
 
            the physician imposed work restrictions, the work injury of 
 
            October 30, 1989 was a cause of a 50 percent loss of earning 
 
            capacity.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 

 
            
 
            Page   6
 
            
 
            
 
            scheduled member disabilities, 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 disabil
 
            ity" 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 restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  Examination of several factors deter
 
            mines the extent to which a work injury and a resulting med
 
            ical condition caused an industrial disability.  These fac
 
            tors include the employee's medical condition prior to the 
 
            injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  see Peterson v Truck Haven 
 
            Cafe, Inc. (Appeal Decision, Feb. 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 50 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 250 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 50 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 Claimant argued for application of the "odd-lot" doc
 
            trine.  However, it was found that claimant  did not look 
 
            for work since leaving his attempted employment in November 
 
            1990.  Claimant must demonstrate a reasonable effort to look 
 
            for work as a part of his prima facie showing that he is 
 
            odd-lot.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
            (Iowa 1985); Emshoff v. Petroleum Transportation Services, 
 
            File No. 753723, (Appeal Decision Filed March 31, 1987).  
 
            Also, given the facts in their entirety it was found that 
 
            claimant was employable.
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Healing period 
 
            benefits will be awarded pursuant to the parties' stipula
 
            tions and the finding that claimant was off work due to the 
 
            work injury from March 29, 1990, until he reached maximum 
 
            healing on October 10, 1990.
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 

 
            
 
            Page   7
 
            
 
            
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, the finding that claimant's current 
 
            arm and neck problems are work-related invokes the parties' 
 
            stipulation in the prehearing report that the expenses are 
 
            causally connected to these conditions.  The requested 
 
            expenses will be awarded.
 
            
 
                 However, it could not be found that the alternate care 
 
            suggested by Dr. Johnson is appropriate.  The request for 
 
            alternate care is denied.
 
            
 
                 Although set out as an issue in the hearing assignment 
 
            order, the claim for penalty benefits under Iowa Code sec
 
            tion 86.13 was not discussed in claimant's portion of the 
 
            prehearing report.  In any event, all of defendants' argu
 
            ments in this case were fairly debatable and no case for 
 
            penalty benefits has been submitted.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at a 
 
            rate of two hundred forty-seven and 99/l00 dollars ($247.99) 
 
            per week from October 10, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from November 9, 1989 through March 14, 1990 and 
 
            from March 29, 1990 through October 10, 1990, at the rate of 
 
            two hundred forty-seven and 99/l00 dollars ($247.99) per 
 
            week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants 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.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 1680
 
            Ft Dodge  IA  50501
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            P O Box 10434
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                          Filed February 20, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL MARK,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 927456
 
            MODERN HOG CONCEPTS,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            USF&G INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LONNIE D. WELCHER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 927475
 
            ALTER GLASS SERVICES,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HERITAGE MUTUAL INSURANCE     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Lonnie D. Welcher, against his employer, Alter 
 
            Glass Services, and its insurance carrier, Heritage Mutual 
 
            Insurance Company, defendants.  The case was heard on 
 
            November 15, 1990, in Burlington, Iowa at the Des Moines 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant, as well as the testimonies of Velda Welcher, 
 
            spouse, Kathy K. Alter, and Scott Alter.  Additionally, the 
 
            record consists of joint exhibits 1-13, 15-25, and 27-32.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; and, 4) 
 
            whether claimant is entitled to medical benefits pursuant to 
 
            section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 36 years old.  He had experienced prior 
 
            episodes of back pain as early as 1968.  In 1986 and 1987, 
 
            while he was residing in Kansas, claimant sustained a 
 
            work-related permanent impairment.  Claimant commenced his 
 
            employment with defendant-employer on July 10, 1989, when he 
 
            was hired as a temporary laborer.  He was hired to install 
 
            windows for defendant-employer at two project sites, the 
 
            Mental Health Institute at Mt. Pleasant and at a new 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            manufacturing facility named NIPRO.  Claimant's duties 
 
            included lifting and carrying glass and metal pieces, 
 
            installing windows, removing air conditioners, and general 
 
            labor work.  Often claimant was required to work on ladders 
 
            two or three stories above ground.
 
            
 
                 On August 24, 1989 and on Friday, August 25, 1989, 
 
            claimant was scheduled at the Mental Health Institute.  He 
 
            worked five hours on August 25, 1989, and was then told to 
 
            leave the site at 1:00 p.m.  Claimant testified he felt 
 
            tingling in his left leg and his big toe was numb.  Claimant 
 
            also testified he called into the shop on Monday, August 28, 
 
            1989.  There was a difference in the testimony whether 
 
            claimant explained at that time that he was off due to a 
 
            work related injury.  However, claimant did report the 
 
            injury after he was terminated for lack of work.
 
            
 
                 Claimant initially went to his family physician, Steven 
 
            M. Readinger, M.D.  The exam took place on September 8, 
 
            1989.  Dr. Readinger diagnosed claimant as having:
 
            
 
                 My exam showed tenderness in the right posterior 
 
                 shoulder and upper back region and some tight 
 
                 lumbar muscles with discomfort produced during 
 
                 range of motion.  I did not find any evidence of 
 
                 nerve root compression even though he had had 
 
                 radicular symptoms.
 
            
 
                 My impression was a low back pain and probably a 
 
                 low back strain along with a probable myofascitis 
 
                 of his right upper back and neck.
 
            
 
                 I believe that Mr. Welcher reinjured his back.  I 
 
                 feel that with his history of doing well after 
 
                 having significant problems 2 - 3 years ago, his 
 
                 back was probably more susceptible to reinjury.  I 
 
                 believe that the time of working on the extension 
 
                 ladder changing windows did cause his reinjury.  I 
 
                 also believe that the same job was a factor in his 
 
                 myofascitis of his upper back and right shoulder.
 
            
 
                 With medication and physical therapy, Mr. 
 
                 Welcher's neck and upper back problem has 
 
                 resolved.  However, he is continuing to have his 
 
                 low back pain with radicular symptoms, although 
 
                 there is still no evidence of nerve root 
 
                 compression.
 
            
 
                 I would say that his prognosis is fair to good but 
 
                 at this time would have no estimate of length of 
 
                 time for resolution of this problem.
 
            
 
                 Eventually, Dr. Readinger referred claimant to Koert R. 
 
            Smith, M.D., an orthopedic surgeon.  Dr. Smith diagnosed 
 
            claimant as having:
 
            
 
                 Degenerative disc disease; L5, S1 with recent 
 
                 acute flare, with mild right sciatica without 
 
                 neurologic deficit.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 In his report of May 9, 1990, Dr. Smith opined:
 
            
 
                 It is my opinion, based on The Manual for 
 
                 Orthopaedic Surgeon's in Evaluating Permanent 
 
                 Physical Impairment, published by the American 
 
                 Academy of Orthopaedic Surgeon's, that the patient 
 
                 has a 5% whole man impairment for neurogenic low 
 
                 back pain with a disc injury with periodic acute 
 
                 episodes, with acute pain and persistent body 
 
                 list.  I feel, however, that this is definitely 
 
                 pre-existing.  His most recent injury, his history 
 
                 as given to me, relates that he in Kansas was 
 
                 given a 10% impairment on his back prior to this 
 
                 injury and I think that his present injury at 
 
                 Alter Glass is merely a recurrent flare of that 
 
                 chronic problem.  I think that he has not 
 
                 sustained any additional impairment over that 
 
                 which he was given in Kansas, and in fact based on 
 
                 my opinion, he would even at this time rate 5% 
 
                 less than he was given in Kansas.
 
            
 
                 In his deposition of July 17, 1990, Dr. Smith 
 
            testified:
 
            
 
                   A.  My diagnosis was that he had degenerative 
 
                 disc disease at the L5-Sl level with recent acute 
 
                 flare or worsening of his symptoms with mild right 
 
                 sciatica without neurologic deficit.
 
            
 
            (Exhibit 28, page 6, lines 5-8)
 
            
 
                 Dr. Smith elaborated in his deposition that:
 
            
 
                   A.  I think, assuming the diagnosis was 
 
                 pre-existing degenerative disc disease that I 
 
                 think was not caused by the lifting but rather an 
 
                 acute flare of that condition, I think the acute 
 
                 flare of the condition most likely was caused by 
 
                 the repetitive lifting at work.
 
            
 
            (Ex. 28, p. 8, ll. 7-12)
 
            
 
                   A.  We'll define a flare-up in terms of his 
 
                 symptoms.  At least by the history given to me, 
 
                 even though he had the pre-existing condition, he 
 
                 had a permanent impairment, symptom-wise he was 
 
                 not having any significant symptoms, was 
 
                 functioning at a fairly normal level until the 
 
                 incident working with Alter Glass in August of 
 
                 '89.  Following that and continually since then, 
 
                 he has had a worsening of his symptoms.
 
            
 
            (Ex. 28, p. 10, ll. 14-21)
 
            
 
                 Dr. Smith, while assessing a five percent permanent 
 
            partial impairment, testified that:
 
            
 
                   Q.  Doctor, have you attributed any of the 
 
                 permanent impairment which you have given Mr. 
 
                 Welcher to the incident which occurred in August 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 of 1989 while employed at Alter Glass Company?
 
            
 
                   A.  Again, I don't have access to records from 
 
                 previous treatment and I didn't see him, I didn't 
 
                 treat him then.  I saw him only for this episode.  
 
                 If someone has a disc problem and it totally 
 
                 heals, at least by the orthopedic guidelines, you 
 
                 get an impairment rating if you have recurrent 
 
                 episodes and limitations based on that diagnosis.  
 
                 He has that now.
 
            
 
                     Again, I don't know what his symptoms and 
 
                 physical findings were at the time he was given 
 
                 his other impairment rating.  I would assume that 
 
                 either all or a portion of the impairment rating 
 
                 is from his pre-existing injury.
 
            
 
            (Ex. 28, p. 14, ll. 4-19)
 
            
 
                 He also determined claimant could return to work as of 
 
            May 9, 1990.
 
            
 
                 Dr. Smith did not have claimant's earlier medical 
 
            records available to assess prior to Dr. Smith's testimony.  
 
            However, Dale Darnell, M.D., diagnosed claimant as having, 
 
            "chronic lumbar strain."  As of March 26, 1987, Dr. Darnell 
 
            assessed an eight percent permanent impairment rating.
 
            
 
                 Claimant was examined by John T. Baldwin, D.O., on 
 
            April 19, 1990.  Dr. Baldwin opined:
 
            
 
                 Assessment:  Degenerative joint disease of the low 
 
                 back.  Variability of pain of sharp to dull nature 
 
                 relating to the left sacroiliac region, left 
 
                 iliolumbar region, right sacroiliac region and the 
 
                 infrascapular region and the dorsal spine of an 
 
                 intermittent nature.  Hyperesthesia in the left 
 
                 lower extremity to the dorsum of the foot as well 
 
                 as the big toe but no neurological deficits are 
 
                 noted.
 
            
 
                 The above injuries are probably related to injury 
 
                 sustained on the job during the week of August 25, 
 
                 1989.
 
            
 
                 Plan:  The patient is at this time seeing Dr. 
 
                 Koert Smith for follow-up, and it's noted he is 
 
                 attempting to come off of all his medications in 
 
                 order to qualify for back school as well as 
 
                 anticipation of chronic back pain school which may 
 
                 be of benefit to him.
 
            
 
                 It would be difficult to assess an exact time as 
 
                 to convalescence from the extent of these injuries 
 
                 with regard to previous injuries and his 
 
                 disability as well as his degenerative joint 
 
                 disease of the low back.  His convalescence may be 
 
                 up to six months to a year.
 
            
 
                 If I may offer some benefit with Osteopathic 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 manipulative treatments for correction of mild 
 
                 structural alignment regarding his pelvis and leg 
 
                 lengths I would be happy to see him whenever 
 
                 necessary.
 
            
 
                 Claimant commenced retraining at Southeastern Community 
 
            College.  However, due to marital discord, claimant 
 
            voluntarily terminated his education.  As of November 1, 
 
            1990, claimant returned to work.  He commenced employment 
 
            with Metromail at the rate of $4.50 per hour.  According to 
 
            his testimony, claimant is scheduled to receive an increase 
 
            after working 400 hours.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 25, 
 
            1989, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 25, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 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).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 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, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 In the case at hand, claimant has proven by a 
 
            preponderance of the evidence that he has sustained an 
 
            injury which arose out of and in the course of his 
 
            employment.  There is the testimony of claimant.  There are 
 
            also the consistent histories which he has reported to his 
 
            family physician, Dr. Readinger, and to Linda 
 
            Horn-Winterberg, employee of Heritage Mutual Insurance 
 
            Company.  Claimant's rendition of the events is credible.
 
            
 
                 Claimant has likewise proven the requisite causal 
 
            connection.  Claimant has materially aggravated a 
 
            preexisting condition.  Dr. Smith has used the terminology 
 
            of "an acute flare of that condition.  The acute flare of 
 
            the condition most likely was caused by the repetitive 
 
            lifting at work."  Dr. Baldwin has also attributed 
 
            claimant's symptoms to his work injury of August 25, 1989.  
 
            Therefore, it is the determination of the undersigned that 
 
            claimant has proven that his condition is causally related 
 
            to the work injury in question.
 
            
 
                 Claimant has not proven that he has a permanent partial 
 
            disability as a result of his work injury of August 25, 
 
            1989.  Claimant had sustained a prior permanent partial 
 
            disability to the body as a whole in the form of a back 
 
            injury.  While claimant was working in Kansas he had been 
 
            assessed as having an eight percent permanent partial 
 
            disability.  Claimant had only temporarily aggravated that 
 
            condition on August 25, 1989.  Dr. Smith, the treating 
 
            physician, testified that all or a portion of his five 
 
            percent impairment rating was attributable to the pre
 
            existing condition.  Additionally, Dr. Smith opined claimant 
 
            did not have an additional or a larger impairment then he 
 
            had because of the Kansas injury.  Therefore, claimant takes 
 
            nothing as a result of any alleged permanent partial 
 
            disability.
 
            
 
                 Claimant has established by a preponderance of the 
 
            evidence that he has a temporary total disability.  Section 
 
            85.33(1) governs the payment of these benefits.  The section 
 
            provides:
 
            
 
                 Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 In the case at hand, the parties have stipulated that 
 
            in the event temporary total disability benefits are 
 
            awarded, the relevant period is from August 25, 1989 to May 
 
            11, 1990.  This is a period of 37.143 weeks.  During this 
 
            time frame claimant was not medically capable of returning 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            to employment substantially similar to the employment in 
 
            which he was engaged on August 25, 1989.  Claimant is 
 
            entitled to benefits for the relevant period at the 
 
            stipulated rate of $260.75 per week.
 
            
 
                 Under section 85.27, claimant is entitled to reasonable 
 
            and necessary medical expenses.  The medical expenses which 
 
            defendants are liable for are as follows:
 
            
 
            05-18-90   Orthopedic & Reconstructive Surgery        
 
            $273.42
 
            10-23-89   Radiologists' Services Diagnostic Imaging    
 
            30.05
 
            05-01-90   Henry County Health Center                  
 
            220.00
 
            10-23-89   Henry County Health Center                   
 
            60.00
 
            04-19-90   John T. Baldwin                              
 
            80.00
 
            08-30-89   R. A. Droz, D.C.                             
 
            40.00
 
            04-19-90   Shoves Pharmacy                               
 
            9.17
 
            09-22-89      "       "                                 
 
            13.19
 
            09-22-89      "       "                                 
 
            10.17
 
            09-08-89      "       "                                  
 
            8.11
 
            09-08-89      "       "                                  
 
            7.63
 
                       Mt. Pleasant Medical Clinic, P.C.           
 
            250.00
 
                                          Total                 
 
            $1,001.74
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay thirty-seven point one-four-three 
 
            (37.143) weeks of temporary total disability benefits at the 
 
            stipulated rate of two hundred sixty and 75/l00 dollars 
 
            ($260.75) per week for the period from August 25, 1989 to 
 
            May 11, 1990.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants are to pay one thousand one and 74/l00 
 
            dollars ($1,001.74) in reasonable and necessary medical 
 
            expenses pursuant to section 85.27.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to IAC Rule 343-3.l
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            P O Box 1066
 
            Keokuk  IA  52632
 
            
 
            Mr. Robert A. Engberg
 
            Mr. Patrick L. Woodward
 
            Attorneys at Law
 
            321 N Third St
 
            Burlington  IA  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801
 
                           Filed November 30, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LONNIE D. WELCHER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 927475
 
            ALTER GLASS SERVICES,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HERITAGE MUTUAL INSURANCE     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits as 
 
            a result of a work related back injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JULLIE JOHNSON RICHMOND,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  927480
 
            CAMPBELL'S CONCESSION,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Jullie 
 
            Johnson Richmond as a result of injuries to her low back 
 
            which allegedly occurred on January 19, 1988.  Defendants 
 
            denied compensability for the injury and paid no benefits.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on February 28, 1991.  The record in the proceeding 
 
            consists of joint exhibits A through F; claimant's exhibit 
 
            1; testimony of claimant, Anna Carter and Linda Forbord.
 
            
 
                 Official notice was taken of employer's first report of 
 
            injury which is on file with this office.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on January 19, 
 
            1988, arising out of and in the course of employment with 
 
            employer;
 
            
 
                 2.  Whether claimant gave employer notice of the injury 
 
            within 90 days of its occurrence pursuant to Iowa Code 
 
            section 85.23.
 
            
 
                 3.  Whether the alleged injury is a cause of permanent 
 
            disability and the extent thereof; and
 
            
 
                 4.  Claimant's entitlement to Iowa Code section 85.27 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant began working for employer in October 1987.  
 
            Her duties were to run a cash register, make sandwiches, 
 
            stock shelves and do general cleanup in employer's sandwich 
 
            shop located at 38th and Hubbell in Des Moines, Iowa.
 
            
 
                 Claimant testified that on January 19, 1988, while 
 
            performing her cleanup duties, she slipped on some ice 
 
            outside of the building.  Claimant stated that she caught 
 
            herself before going all the way to the ground and that she 
 
            did not drop the pan of grease that she was carrying.  
 
            Claimant stated that she injured her low back as a result of 
 
            the slip on the ice.
 
            
 
                 Claimant stated that she reported the incident to Anna 
 
            Carter and to Linda Forbord who were coworkers.
 
            
 
                 Claimant stated that the injury occurred at about 10 
 
            p.m. on January 19, 1988.  The weekly time sheets provided 
 
            by employer indicate that claimant worked from 5 p.m. to 
 
            10:30 p.m. on January 18, 1988, but did not work January 19, 
 
            1988 (exhibit F, page 13).  The emergency room records also 
 
            indicate that claimant was not at work on January 19, 1988.  
 
            Claimant went to the Mercy Hospital emergency room January 
 
            19, 1988, at 9:59 a.m. complaining of low back pain that 
 
            started when she was rubbing her back on January 18, 1988 
 
            (ex. B, p. 17).  The notes also reveal a chronic back 
 
            problem that has existed for seven years previous with no 
 
            mention of a recent fall at work (ex. B, p. 17).  The 
 
            radiology notes indicate a recent fall, but did not state 
 
            that the fall happened at work (ex. B, p. 19).  The physical 
 
            therapy notes, dated January 20, 1988, indicate an onset of 
 
            low back pain starting January 18, 1988, after being on her 
 
            feet for about six to eight hours with no known trauma (ex. 
 
            B. p. 22).  A patient questionnaire dated January 19, 1988, 
 
            also states no known trauma (ex. B, p. 25).  Claimant 
 
            testified at hearing that she may have been confused with 
 
            her dates.
 
            
 
                 Claimant received some initial treatment for her back 
 
            and was ordered off work for three days.  Claimant stated 
 
            that she returned to work for employer after a few days of 
 
            rest.  Claimant continued on with her regular duties until 
 
            May of 1988 when she quit for reasons unrelated to the 
 
            alleged injury.
 
            
 
                 Claimant again sought treatment for her low back in 
 
            January 1989.  The medical records reveal a one year history 
 
            of back pain originating after slipping at work (ex. B, p. 
 
            42).  Claimant reported that the most recent low back pain 
 
            originated after moving furniture at home (ex. B, pp. 42, 44 
 
            & 48).  
 
            
 
                 Claimant experienced a third period of medical 
 
            treatment for the low back problem in June and July of 1989 
 
            (ex. B, pp. 137 & 146).  Claimant gave a history of having 
 
            back pain without any specific trauma (ex. B, pp. 137, 140 & 
 
            146).
 
            
 
                 Claimant experienced a fourth episode of low back pain 
 
            in January 1990.  This episode resulted in decompression 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            surgery of the L5-S1 disc (ex. C, p. 2).  William R. 
 
            Boulden, M.D., noted claimant's impairment at 13 percent to 
 
            the body as a whole as a result of the low back surgery (ex. 
 
            C, p. 6).  It should be noted that Dr. Boulden made no 
 
            statement concerning the relationship of the surgery to the 
 
            alleged January 19, 1988 injury.
 
            
 
                 Claimant testified that the low back surgery was 
 
            successful in that the low back pain has diminished 
 
            markedly.  Claimant reported less right leg pain than before 
 
            the surgery.
 
            
 
                 Claimant also stated that she has difficulty performing 
 
            work which requires lifting over 5 to 10 pounds or standing 
 
            for longer than 4 to 5 hours.  Claimant can no longer 
 
            perform house cleaning tasks such as vacuuming.
 
            
 
                 Claimant attributes all of her low back problems to the 
 
            alleged January 19, 1988 injury.
 
            
 
                 Anna Carter testified on behalf of defendants.  She 
 
            stated that she has been employed by employer since August 
 
            4, 1987.  Carter now works as a manager for employer.
 
            
 
                 Carter stated that she worked with claimant as a 
 
            coworker in January 1988.  Carter said that she only saw 
 
            claimant when one was coming to work while the other was 
 
            leaving.  Carter stated that she didn't recall claimant's 
 
            report of a work-related injury to her low back.
 
            
 
                 Linda Forbord testified on behalf of defendants.  She 
 
            has worked for employer for 12 years and is currently 
 
            employed as a manager at the 2500 Hubbell Avenue location.  
 
            In January 1988, Forbord was the manager of the 3800 Hubbell 
 
            location where claimant was stationed.  Forbord testified 
 
            that she did not recall any telephone calls or conversations 
 
            with claimant concerning the alleged January 19, 1988, low 
 
            back injury.  She also stated that if such a report was made 
 
            an employer's accident report would have been completed.  No 
 
            such report was created.
 
            
 
                 The first issue to be resolved concerns whether 
 
            claimant sustained an injury on January 19, 1988, arising 
 
            out of and in the course of employment with employer.  
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that an injury occurred.
 
            
 
                 The facts are widely conflicting concerning the event 
 
            of January 19, 1988.  Documentary evidence points to the 
 
            fact that if an injury occurred at work it would probably 
 
            have occurred on January 18, 1988.  This possible mistake 
 
            does not of itself cause the claim to fail, but the evidence 
 
            does weigh against claimant's case.
 
            
 
                 Medical records created by unbiased medical providers 
 
            are routinely relied upon by this commission.  Such records 
 
            are generally given great weight in that they are prepared 
 
            by disinterested parties at a time which is close to the 
 
            events.  In this case the medical records reveal an 
 
            inconsistent history given by claimant near the time of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            alleged injury.  
 
            
 
                 Claimant provided at least three versions of the origin 
 
            of the low back pain.  First, it was reported that the pain 
 
            started when she rubbed her back on January 18, 1988 (ex. B, 
 
            p. 17).  Second, she reported pain that started from a 
 
            recent fall (ex. B, p. 19).  Finally, she reported that the 
 
            back pain started when she was standing at work (ex. B, pp. 
 
            22 & 25).  These records are given great weight as they were 
 
            created close in time to the date of the alleged accident.  
 
            They are also given great weight as they are created by 
 
            disinterested medical professionals who routinely take 
 
            histories as a necessary part of their medical practice.
 
            
 
                 It is found that claimant has failed to prove by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her low back on January 18, 1988 or January 19, 1988, 
 
            arising out of and in the course of employment with 
 
            employer.  The inconsistent medical histories combined with 
 
            the testimonies from Anna Carter and Linda Forbord were 
 
            sufficient to prevent claimant from meeting her burden of 
 
            proof.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on January 18, 
 
            1988 or January 19, 1988, which arose out of and in the 
 
            course of her employment.  McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that she sustained an injury to her low back on 
 
            January 18, 1988 or January 19, 1988, while performing 
 
            duties for employer.
 
            
 
                                      order
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That claimant's petition is dismissed.
 
            
 
                 That each party pay their own respective costs of this 
 
            action pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jeffrey G. Flagg
 
            Attorney at Law
 
            2716 Grand Ave
 
            Des Moines, Iowa  50309
 
            
 
            Mr. David Jenkins
 
            Attorney at Law
 
            801 Grand Ave. STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
            Mr. Brian L. Campbell
 
            Attorney at Law
 
            1100 Des Moines Bldg.
 
            Des Moines, Iowa  50309-2464
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100
 
                      Filed April 1, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JULLIE JOHNSON RICHMOND,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  927480
 
            CAMPBELL'S CONCESSION,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100
 
            Claimant gave inconsistent medical histories within a few 
 
            days of the alleged injury.  None of which eluded to a 
 
            work-related low back injury.  Claimant failed to prove that 
 
            she sustained an injury that arose out of and in the course 
 
            of employment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DURINDA BOGGUSS,              :
 
                                          :         File No. 927487
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SHELLER-GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Durinda Bogguss, against her employer, 
 
            Sheller-Globe Corporation, self-insured defendant.  The case 
 
            was heard on January 24, 1991, in Burlington, Iowa at the 
 
            Des Moines County Courthouse.  The record consists of the 
 
            testimony of claimant.  The record also consists of the 
 
            testimony of Thomas J. Mortimer and Roseanne LeMaster.  
 
            Additionally, the record consists of joint exhibits 1-4, 16, 
 
            19-22 and 23; claimant's exhibits 5 and 17; and, defendant's 
 
            exhibit 18.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            is entitled to permanent partial disability benefits; and, 
 
            2) whether claimant is entitled to medical benefits pursuant 
 
            to section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 44 years old.  She has a high school 
 
            diploma and she has worked at Sheller-Globe for 18 years.  
 
            Claimant had been employed as a production worker where she 
 
            had engaged in heavy work.  Often claimant had been required 
 
            to lift 30-40 pounds.  Her job involved bending, twisting, 
 
            climbing and stooping.
 
            
 
                 On August 21, 1987, claimant was attending a convention 
 
            on behalf of her employer.  There was a motel fire.  
 
            Claimant was descending a flight of stairs when she slipped.  
 
            She felt pain in her low back, especially on the right side.
 
            
 
                 Claimant went to see Dr. Kemp, M.D., (first name 
 
            unknown) at the hospital in Keokuk.  Claimant was treated 
 
            for a contused right lumbosacral area.  She was assigned 
 
            light duty.  Then she was taken off work.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Next, claimant treated with Gary Crank, D.C.  He 
 
            treated claimant conservatively and he restricted her to 
 
            light duty.  Dr. Crank also performed testing with equipment 
 
            known as DYNATRON 2000 PATIENT TESTING AND MANAGEMENT 
 
            SYSTEM.  According to Dr. Crank's report of July 6, 1988:  
 
            "The initial report enclosed reveals a Moderate strength 
 
            impairment to the RIGHT HIP."
 
            
 
                 Dr. Crank issued impairment ratings for claimant.  As 
 
            of November 2, 1989, Dr. Crank opined claimant had a 16 
 
            percent impairment.  This was classified as a "Current 
 
            Oswestry ADL Disability Score."
 
            
 
                 Later, Dr. Crank modified his impairment rating.  In 
 
            his report of June 22, 1990, Dr. Crank wrote:
 
            
 
                 The last day Durinda was in our office was 11-2-89 
 
                 at which time we did an re-evaluation:
 
            
 
                 1. Chief complaints included the lumbar, cervical 
 
                    spine, also the patient complains of right and 
 
                    left hip, right and left leg pain of the lower 
 
                    extremity.
 
            
 
                 It is my opinion that it is within a reasonable 
 
                 degree of probability causally connected to her 
 
                 injury when she fell down some stairs in a hotel, 
 
                 where a fire was happening at the time on August 
 
                 1987.
 
            
 
                 I have been requested by your office to give a 
 
                 permanent partial impairment rating to the body as 
 
                 a whole.
 
            
 
                 Using Reference:
 
            
 
                   1.  GUIDES TO THE EVALUATION OF PERMANENT 
 
                    IMPAIRMENT,            AMERICAN MEDICAL 
 
                    ASSOCIATION.
 
            
 
                   2.  MANUAL FOR ORTHOPAEDIC SURGEIONS [SIC] IN              
 
                    EVALUATING PERMANENT PHYSICAL IMPAIRMENT,                 
 
                    AMERICAN ACADEMY OF ORTHOPAEDIC SURGEIONS 
 
                    [SIC].
 
            
 
                   3.  APPLIED SPINAL DISABILITY, J.M. MAZION.
 
            
 
                 Upon using these guides, in my opinion, a fair and 
 
                 reasonable evaluation would be:
 
            
 
                                                              WHOLE 
 
                 BODY
 
                                                         
 
            IMPAIRMENT
 
                 1.  Trauma and Pre-existing 
 
            Factors Combined . . . . 10%
 
            
 
                        L.I.V.D . . . . . . . . . . . . . . . . . . .  
 
            5%
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 2.  Neurogenis Low Back Pain, Disc Lesion
 
                        Positive Sciatic Compression Test
 
                        L.I.V.D. . . . . . . . . . . . . . . . . . . . 
 
            5%
 
            
 
            
 
            
 
                        COMBINED . . . . . . . . . . . . . . . . . .  
 
            22%
 
            
 
            FINAL IMPAIRMENT RATING WHOLE BODY . . . . . . . . . . .  
 
            20%
 
            
 
            (Exhibit 17, pages 109 & 110)
 
            
 
                 Claimant was also examined by a neurosurgeon, Felix 
 
            Martin, M.D.  Dr. Martin opined:
 
            
 
                 Enclosed please find a copy of the MRI report on 
 
                 your patient, Ms. Bogguss.  As you can detect, she 
 
                 has no actual ruptured disc, but degenerated disc 
 
                 which I am sure helped to jerk badly the lumbar 
 
                 spine precipitating the severe discomfort that she 
 
                 has presented.  In the overall, although, I feel 
 
                 she is slowly improving.
 
            
 
                 I believe that time will help, although if in the 
 
                 future she should need some help with some 
 
                 medication, I will be glad to give her some help 
 
                 in that regard.
 
            
 
            (Ex. 4, p. 68)
 
            
 
                 In his report of May 4, 1988, Dr. Martin wrote:
 
            
 
                 In brief, I could not corroborate any serious back 
 
                 trouble but some backache is possible in lieu of 
 
                 the fact she has degenerated discs which are not 
 
                 unusual although there is no rupture or herniated 
 
                 disc.  The weakness in the right hand cannot be 
 
                 explained medically.
 
            
 
                 I feel that the patient should be able to 
 
                 integrate in her regular working activities.
 
            
 
            (Ex. 4, p. 71)
 
            
 
                 Claimant was also examined by William J. Holt, M.D.  He 
 
            prescribed a month of physical therapy.  He opined claimant 
 
            could return to her regular work duties following her 
 
            therapy.
 
            
 
                 For purposes of evaluation and examination, claimant 
 
            was sent to an orthopedic specialist, Peter D. Wirtz, M.D., 
 
            on May 21, 1988.  Dr. Wirtz opined:
 
            
 
                 Exam shows she can flex her back to 90 degrees 
 
                 while sitting.  Standing legs are of equal length 
 
                 and she can flex her back to 45 degrees.  Lateral 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 flexion is 45/45 and extension is 15 degrees.  
 
                 Straight leg raising sitting is 90/90.  KJ's 2/2, 
 
                 AJ's 1/1, and there is no motor or sensory deficit 
 
                 noted.
 
            
 
                 X-rays from Chiropractor Crank 10/9/87 reviewed 
 
                 total body, total length show anomalous lower 
 
                 lumbar spine with six lumbar vertebrae.  Lateral 
 
                 view shows anomalous position of hte [sic] sixth 
 
                 vertebrae on the sacral segment with narrowing and 
 
                 shortening of the AP measurement.  There is 
 
                 calcification in the 4-5 disc.
 
            
 
                 Records made available reveal an MRI was doen 
 
                 [sic] showing disc changes at L4-5 and L5, L6.
 
            
 
                 Diagnosis:  Chronic disc degeneration, lumbar 
 
                 spine.
 
            
 
                 This patient continues to exhibit symptoms 
 
                 centered around her disc degeneration.  
 
                 Restriction at the present time for her functional 
 
                 capability would be those of bending, twisting, 
 
                 and lifting beyond her physiologic strength and 
 
                 dexterity.  She is capable of employment within 
 
                 these restrictions and I would recommend a gradual 
 
                 increase in activities.
 
            
 
            (Ex. 22, pp. 139 & 140)
 
            
 
                 Finally again for purposes of evaluation and 
 
            examination, claimant was sent on three occasions to Marvin 
 
            R. Mishkin, M.D.  He examined claimant on December 19, 1988, 
 
            September 6, 1989 and August 15, 1990.  Dr. Mishkin opined 
 
            claimant had no physical impairment.  He testified by 
 
            deposition that:
 
            
 
                   Q.  Okay.  Did you have any recommendations as 
 
                 far as further treatment or limitation of 
 
                 activities at work or someplace else?
 
            
 
                   A.  In my opinion the patient can perform 
 
                 activities without restrictions, and it was 
 
                 further my opinion that no orthopaedic or 
 
                 musculoskeletal treatment was indicated or 
 
                 recommended.
 
            
 
                   Q.  What restrictions, if any, would you impose 
 
                 on her activities?
 
            
 
                   A.  None.
 
            
 
                   Q.  Based upon the findings or lack of findings 
 
                 at that time, what is your opinion as to whether 
 
                 she had any permanent partial impairment or 
 
                 disability?
 
            
 
                   A.  In my opinion there was no permanent partial 
 
                 disability or impairment.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            (Ex. 18, p. 23, lines 1-17)
 
            
 
                 In further testimony, Dr. Mishkin testified:
 
            
 
                   A.  I'm not entirely sure I understand the 
 
                 question.  It's my opinion that I would place no 
 
                 restriction on this patient in regards to her 
 
                 occupational duties.  I would not and did not 
 
                 place any light-duty restrictions on her, and I 
 
                 didn't put any limitations such as was mentioned 
 
                 in that report you just read to me.  I would not 
 
                 agree or concur with that opinion.  It was my opin
 
                 ion and is my opinion, based on my examination, 
 
                 the patient can perform her regular and all her 
 
                 occupational duties without restriction.
 
            
 
            (Ex. 18, p. 30, ll. 2-12)
 
            
 
                                conclusions of law
 
            
 
                 Claimant alleges she is permanently disabled because of 
 
            her work injury on August 21, 1987.  Defendant admits an 
 
            injury occurred.  However, defendant denies any permanency 
 
            resulted.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the work injury is a 
 
            cause of the claimed disability.  A disability may be either 
 
            temporary or permanent.  In the case of a claim for 
 
            temporary disability, the claimant must establish that the 
 
            work injury was a cause of absence from work and lost 
 
            earnings during a period of recovery from the injury.  
 
            Generally, a claim of permanent disability invokes an 
 
            initial determination of whether the work injury was a cause 
 
            of permanent physical impairment or permanent limitation in 
 
            work activity.  However, in some instances, such as a job 
 
            transfer caused by a work injury, permanent disability 
 
            benefits can be awarded without a showing of a causal 
 
            connection to a physical change of condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, 
 
            positive or unequivocal language and the expert opinion may 
 
            be accepted or rejected, in whole or in part, by the trier 
 
            of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding 
 
            circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed disabil
 
            ity.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
            preexisting condition, an employee is not entitled to 
 
            recover for the results of a preexisting injury or disease 
 
            but can recover for an aggravation thereof which resulted in 
 
            the disability found to exist.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257 (1963).
 
            
 
                 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 
 
            he is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
            Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has not proven by a preponderance of the 
 
            evidence that she has sustained any permanent partial 
 
            disability.  While it is acknowledged claimant has sustained 
 
            some degenerative disk disease, the orthopedic specialists 
 
            do not causally connect the degenerative disk disease to 
 
            claimant's fall on August 21, 1987.  Only Dr. Crank, a 
 
            chiropractor, has opined there is a permanent impairment.  
 
            However, his opinion is not supported by objective evidence.  
 
            Moreover, it is difficult for the undersigned to "decipher" 
 
            the meaning of Dr. Crank's evaluation of:
 
            
 
            
 
                                Neurogenis Low Back Pain,
 
                           Disc Lesion Positive Sciatic
 
                           Compression Test L.I.V.D.
 
            
 
                 Even Dr. Mishkin testified he did not understand what 
 
            the aforementioned phrase represented in terms of claimant's 
 
            condition.  Dr. Crank's opinion does not carry as much 
 
            weight as do the opinions of Dr. Wirtz and Dr. Mishkin.  The 
 
            physicians are better educated than is Dr. Crank.  Dr. 
 
            Crank's opinion is not accorded more weight simply because 
 
            he treated claimant.
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).
 
            
 
                 The final issue to determine is whether claimant is 
 
            entitled to medical care pursuant to section 85.27.  The 
 
            section reads in relevant part:
 
            
 
                   The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                   For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Here, claimant has sustained a temporary injury to her 
 
            back.  She is entitled to reasonable and necessary medical 
 
            care.  Defendant has the right to select the care for 
 
            claimant.  However, it is the determination of the 
 
            undersigned that it is unreasonable, in this instance, to 
 
            send claimant to either Des Moines or St. Louis for her 
 
            care.  There are numerous fine orthopedic specialists closer 
 
            to Keokuk than either Dr. Wirtz or Dr. Mishkin.  To require 
 
            claimant to travel such distances for treatment is unrea
 
            sonable.  Defendant is required to provide to claimant 
 
            medical practitioners who are not in Des Moines or in St. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Louis but who are closer in distance to Keokuk.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to provide reasonable and necessary 
 
            medical care to claimant which is closer to Keokuk than 
 
            either Des Moines or St. Louis.
 
            
 
                 Defendant shall bear costs of this action pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 2700
 
                           Filed July 26, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DURINDA BOGGUSS,              :
 
                                          :         File No. 927487
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SHELLER-GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant was unable to prove by a preponderance of the 
 
            evidence that she sustained any permanent partial disability 
 
            as a result of a work related fall.
 
            
 
            2700
 
            Claimant lived in Keokuk.  The employer's place of business 
 
            was in Keokuk.  Claimant was sent to St. Louis and Des 
 
            Moines for medical treatment.  Held it was unreasonable for 
 
            defendant-employer to require claimant to travel to either 
 
            Des Moines or St. Louis for medical treatment for a back 
 
            condition.  There were numerous orthopedic specialists 
 
            closer to Keokuk than either Des Moines or St. Louis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                            :
 
            CHERYL BOESE,                   :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :         File No. 927540
 
            CECO BUILDING DIVISION,         :
 
                                            :      A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :         D E C I S I O N
 
            and                             :
 
                                            :
 
            NATIONAL UNION & FIRE INS. CO.,:
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Cheryl Boese, against her employer, Ceco 
 
            Building Division, and its insurance carrier, National Union 
 
            & Fire Insurance Company, defendants.  The case was heard on 
 
            October 1, 1991, in Burlington, Iowa at the Des Moines 
 
            County courthouse.  The record consists of the testimony of 
 
            Marvin Doan, foreman, the testimony of claimant, and the 
 
            testimony of Bob Boese, spouse of claimant.  The record also 
 
            consists of joint exhibits 1-25.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the injury and any permanent 
 
            disability; and 2) whether claimant is entitled to any 
 
            permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 42 years old.  She completed the ninth 
 
            grade but then she dropped out of school when she was in the 
 
            tenth grade.
 
            
 
                 On April 17, 1979, claimant commenced her employment 
 
            with defendant-employer.  She was hired to operate a brake 
 
            press.  The press bent trim for metal buildings.  Claimant 
 
            was required to stand in one position and to lift materials 
 
            weighing up to 20 pounds.  She held that position for 
 
            approximately one year until she bid into a shearing 
 
            position.  The shearing position lasted about one year and 
 
            then claimant bid into a position known as "pack-out."
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant worked at the pack-out position for nine 
 
            years.  The position necessitated claimant to package 
 
            materials into 20 foot crates.  Claimant handled from 200 to 
 
            600 pieces of metal per day.  She needed assistance when 
 
            handling some of the materials.
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury which arose out of and in the course of her 
 
            employment on August 28, 1989.  Claimant tripped over a 
 
            piece of material on the floor.  She fell backwards and hit 
 
            her tailbone on the floor and she bumped her head and neck 
 
            against the screw of her hard hat.  Claimant was transported 
 
            by ambulance to the hospital where x-rays were taken.  Later 
 
            she was released from the hospital.
 
            
 
                 X-rays taken on the aforementioned day were normal.  
 
            Claimant was diagnosed as having:  "back contusion with 
 
            contusion of the coccyx, contusion of the head and neck, and 
 
            headache.  Linwood Miller, D.O., claimant's family 
 
            physician, ordered physical therapy for claimant.  She 
 
            participated in the prescribed therapy.
 
            
 
                 Both prior to and subsequent to the August 28, 1989 
 
            injury, claimant sought chiropractic treatment from K. E. 
 
            Kirchner, D.C.  Claimant was treated for both cervical and 
 
            low back problems.  The treatment subsequent to the August 
 
            28, 1989 injury was sought because of various falls and 
 
            several bumping and lifting accidents.
 
            
 
                 Claimant also sought chiropractic treatment from Denis 
 
            Staples, D.C.  Dr. Staples had been treating claimant for 
 
            prior back problems and headaches.  As early as February 24, 
 
            1989, Dr. Staples' office notes reveal treatment for those 
 
            conditions.  Manual manipulation was performed six days 
 
            before claimant's work injury.  Subsequent to August 28, 
 
            1989, claimant continued to receive chiropractic care.
 
            
 
                 Claimant continued to experience pain.  Dr. Miller 
 
            referred claimant to Richard Neiman, M.D., a board certified 
 
            neurologist.  He initially examined claimant on January 5, 
 
            1990.  Dr. Neiman ordered various diagnostic tests, 
 
            including a myelogram of the cervical spine and a CT scan of 
 
            the head and lumbar spine.  The test results were all 
 
            negative.  Dr. Neiman found no need for any surgical 
 
            intervention.  He ordered deep muscle massage but forbid 
 
            chiropractic manipulation.  He opined the injuries were to 
 
            the soft tissues in the neck.  He opined claimant had a 
 
            myofascial pain syndrome.
 
            
 
                 In his report of February 22, 1990, Dr. Neiman opined:
 
            
 
                 Cheryl returns still having difficulty as far as 
 
                 the neck; however, I think she has improved to 
 
                 some degree. We could try the soft tissue 
 
                 manipulation program in spite of increased amount 
 
                 of pain and also discomfort down the left arm.  
 
                 She still seems to be weak involving the C7 nerve 
 
                 root on the left side; however, the myelogram is 
 
                 absolutely normal.  I think a soft tissue 
 
                 manipulation program would help relieve some of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 the discomfort in the neck.  It, however, would 
 
                 preclude her returning to work and putting 30 lbs. 
 
                 of weight upon her shoulders.  If she does this on 
 
                 the left side, this tends to aggravate the 
 
                 condition.  She certainly is capable of doing a 
 
                 number of type of positions, unfortunately not so 
 
                 much at this plant.  I think she still is quite 
 
                 emotional.  She is on nortriptyline 25 mg in the 
 
                 morning and 50 mg at night.  I have tried to put 
 
                 her on 75 mg a night and add some Prozac 20 mg 
 
                 q.a.m. to see if we can't help the emotionality.  
 
                 The pain threshhold [sic] really is quite low as 
 
                 well.  If the insurance company does not elect to 
 
                 proceed with the soft tissue manipulation program, 
 
                 it might be advisable to see her back in about a 
 
                 month or so.
 
            
 
            (Exhibit 1, page 13)
 
            
 
                 As of his report of May 8, 1990, Dr. Neiman opined:
 
            
 
                 Your patient, Cheryl Boese, returned for 
 
                 examination on 5-8-90.  We tried to get her back 
 
                 to work.  In fact I enclose the description of the 
 
                 job that we sent her back to 4 hours a day.  She 
 
                 was on it yesterday and contacted me afterwards 
 
                 because of the intensification of the pain about 
 
                 the left shoulder and burning down the left side 
 
                 of the body including the left leg.  Today she has 
 
                 pain with movement of her left shoulder and pain 
 
                 about the left suprascapular region.  This is 
 
                 similar to the past.  She relates the discomfort 
 
                 to the repetative [sic] use of the arms being held 
 
                 out in front of her.  I honestly thought she had a 
 
                 reasonable chance to get back to work.  I think we 
 
                 should hold tight for another week and see how she 
 
                 gets along.  If she determines that she cannot go 
 
                 back to work it would probably be wise to go ahead 
 
                 and give her a rating of disability and try to see 
 
                 if we can't get this issue resolved.  She 
 
                 certainly is capable of a number of sedentary type 
 
                 of jobs but unfortunately it doesn't sound like 
 
                 she is able to return to her current work at Ceco.  
 
                 She continues to take the Prozac and Nortriptyline 
 
                 and Estrogen.  She also takes the Carofate.  I 
 
                 would suggest that she try the Darvocet for the 
 
                 pain.  This is Tuesday and she can probably give 
 
                 me a call on Friday afternoon to advise me as to 
 
                 how she is doing.
 
            
 
            (Ex. 1, p. 4)
 
            
 
                 Dr. Neiman conducted a functional capacities evaluation 
 
            of claimant on July 9, 1990.  The evaluation revealed that 
 
            claimant could engage in light work.  She could lift 20 
 
            pounds maximum with frequent lifting and carrying of objects 
 
            weighing up to 10 pounds.  Claimant was also restricted to:  
 
            "Standing 4-6 hours per day; walking 4-6 hours per day; and, 
 
            sitting 3-5 hours per day and only to occasionally engage in 
 
            bending, squatting, and climbing."
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Neiman opined the following relative to claimant's 
 
            restrictions:
 
            
 
                 I believe you already have a copy of the letter of    
 
                 6-24-90 regarding the level of impairment of 
 
                 approximately 10% of the whole person.  She has 
 
                 significant limitations as far as the use of the 
 
                 left arm.  She cannot use the left arm 
 
                 repetatively [sic] above the shoulder level.  Also 
 
                 she has to have frequent change of position as far 
 
                 as the neck with avoidance of excessive flexion, 
 
                 extension, lateral rotation.  She needs to change 
 
                 position quite frequently.  I suggest 15 pounds of 
 
                 frequent lifting maximum of 25 pounds.  I think 
 
                 she is quite capable of light duty type work.  The 
 
                 new position she is looking at requiring floral 
 
                 arrangement is certainly quite adequate.  If you 
 
                 have additional questions regarding this 
 
                 dictation, please advise.
 
            
 
            (Ex. 1, p. 1)
 
            
 
                 Claimant attempted to return to work on three separate 
 
            occasions.  On December 4, 1989, claimant returned to work 
 
            for three days in the "pack-out" department.  There was a 
 
            second attempt at returning to work.  Claimant only worked 
 
            two to four hours before she left the plant.  Claimant made 
 
            a third attempt to return to work on June 24, 1990.  She 
 
            attempted to drive a fork lift truck but she had 
 
            difficulties with her left arm and she was forced to 
 
            discontinue that task.  On July 16, 1990, claimant was 
 
            terminated because there was no job which she could perform.  
 
            At the time, she was earning $10.87 per hour.
 
            
 
                 Claimant sought both employment and vocational 
 
            rehabilitation subsequent to termination by 
 
            defendant-employer.  Claimant was assisted by John Hunoldt 
 
            at the Iowa Department of Vocational Rehabilitation.  Mr. 
 
            Hunoldt testified by deposition.  He opined that:
 
            
 
                    A.  I feel she's going to have a lot of 
 
                 difficulty in finding a full-time job with limited 
 
                 use of work skills that she has and with the 
 
                 limitations and problems she's having as a result 
 
                 of her current medical problems.
 
            
 
                    Q.  How would you rate the chance for her 
 
                 finding a full-time job in a recognized job 
 
                 market?
 
            
 
                           MR. KAMP:  I am going to object to that.  
 
                 I think it's speculation.
 
            
 
                    Q.  Go ahead and answer it.
 
            
 
                    A.  Well, it's going to be really hard.  She's 
 
                 going to have a lot of difficulty.
 
            
 
                           MR. BELL:  That's all I have.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            (Ex. 24, p. 29, lines 10-22)
 
            
 
                 Claimant held several positions subsequent to her 
 
            initial contact with Mr. Hunoldt.  She stamped and stuffed 
 
            envelopes at ITC for $3.40 to $3.85 per hour.  After three 
 
            months, she left that position for a position as a computer 
 
            operator with an auto dealership.  She was employed at the 
 
            dealership for six months.  Her employer terminated her 
 
            because she had very poor clerical skills.
 
            
 
                 In March of 1991, claimant found a position as a 
 
            waitress and a grill cook in a restaurant.  She earned $4.25 
 
            per hour and $6.00 per day in tips.  The restaurant closed 
 
            October 1, 1991, when its lease term expired.
 
            
 
                 At the time of the hearing, claimant was again working 
 
            as a waitress for $3.25 per hour.  She testified she worked 
 
            approximately 20 hours per week and she varied her assigned 
 
            duties.
 
            
 
                                conclusions of law
 
            
 
                 The fighting issues in this case are whether the injury 
 
            of August 28, 1989, is the cause of any permanent disability 
 
            and, if so, the amount of any permanent disability.
 
            
 
                 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).
 
            
 
                 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).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            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.
 
            
 
                 With respect to the instant case, Dr. Neiman has 
 
            related claimant's condition, at least in part, to her work 
 
            injury of August 28, 1989.  (Ex. 23, p. 33, ll. 4-12).  In 
 
            his deposition, he testified that the areas of pain were 
 
            different prior to the injury, but that as of the date of 
 
            the injury, claimant was complaining of pain at the base of 
 
            the neck, into the shoulder area, and down into the base of 
 
            the coccyx.  (Ex. 23, p. 34, l. 16 - p. 36, l. 10.  The 
 
            requisite causal connection has been established.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 There is no question that subsequent to the date of the 
 
            work injury, claimant had sustained a series of other 
 
            injuries.  She stepped off a curb and fell when her left leg 
 
            gave way.  In May of 1990, her left leg again caused her 
 
            problems when she was lifting a gas can.  She bumped her 
 
            head on the car.  In January of 1991, she slipped on the ice 
 
            and fell causing pain to her neck and spine.  On August 28, 
 
            1990, one year after the work injury, claimant injured her 
 
            back when moving furniture.  While claimant testified none 
 
            of the subsequent accidents contributed to her symptoms, 
 
            she, nevertheless, sought chiropractic care.  That type of 
 
            treatment was directly contrary to the advice of the autho
 
            rized treating physician.  It only stands to reason that 
 
            those subsequent accidents added to claimant's symptoms.  
 
            Otherwise, she would have heeded the advice of Dr. Neiman 
 
            and avoided all chiropractic care which he opined negatively 
 
            impacted upon a soft tissue injury.
 
            
 
                 It is the determination of the undersigned that 
 
            claimant's subsequent accidents exacerbated her condition of 
 
            August 28, 1989, to the point that claimant sought treatment 
 
            contrary to the treatment of the authorized treating 
 
            neurologist.  Moreover, it is the determination of the 
 
            undersigned that the chiropractic manipulation which 
 
            claimant subsequently received also negatively affected 
 
            claimant's soft tissue injury.  In short, the chiropractic 
 
            treatment did nothing to improve claimant's myofascial pain 
 
            syndrome.  This deputy is convinced, however, that as of 
 
            August 28, 1989, claimant had sustained some permanent 
 
            impairment.  She had minor limitations in her range of 
 
            motion (Ex. 23, p. 7, ll. 11 - p. 8, l. 7).  Her motor 
 
            strength on the left side was weakened (Ex. 23, p. 8, ll. 
 
            14-23).  She had clinical evidence of a C7 radiculopathy on 
 
            the left side (Ex. 23, p. 9, ll. 16-20).  Additionally, 
 
            claimant was placed on rather severe permanent restrictions.  
 
            The restrictions are attributable, in part, to claimant's 
 
            work injury.  Her restrictions are severe.  She can engage 
 
            in light work categories, but she cannot lift more than 20 
 
            pounds on a frequent basis.
 
            
 
                 Claimant has sustained an industrial disability because 
 
            of the work injury in question.  She can no longer hold her 
 
            former position.  She has made three good faith attempts to 
 
            return to work.  The attempts, by and large, occurred before 
 
            most of the subsequent injuries discussed, so this deputy is 
 
            convinced that claimant sustained some industrial disability 
 
            because of her August 28, 1989 work injury.
 
            
 
                 Claimant is extremely motivated.  She is to be 
 
            commended.  She has made every good faith effort imaginable 
 
            to rehabilitate herself.  She has sought vocational 
 
            counseling, although her own academic skills have been an 
 
            impediment to any real progress.  She has no diploma or GED.  
 
            She has taken a typing course at the community college.  She 
 
            has attempted employment in a variety of areas, but since 
 
            her clerical skills are of the very lowest, she has met with 
 
            little success in the secretarial area.  Her earning 
 
            capacity has been reduced because of her work injury.  She 
 
            can only hold light duty type jobs.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has resorted to restaurant work for 
 
            employment.  She has only been able to find part-time work 
 
            at 20-25 hours per week.  Even now her wages are at the very 
 
            low end of the scale.  Her chances for advancement with 
 
            increased wages and benefits are minimal at best.  Claimant 
 
            has experienced an actual loss of wages because of her work 
 
            injury.
 
            
 
                 In light of the foregoing factors, it is the 
 
            determination of the undersigned that claimant has a 30 
 
            percent permanent partial disability which is attributable 
 
            to claimant's work injury of August 28, 1989.  Claimant is 
 
            entitled to 150 weeks of benefits at the stipulated rate of 
 
            $258.16 per week and commencing on June 25, 1990.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred fifty-eight and 16/l00 
 
            dollars ($258.16) per week commencing on June 25, 1990.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants shall receive credit for all benefits paid 
 
            to claimant.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Richard J. Bell
 
            Attorney at Law
 
            111 E Washington St
 
            Mt. Pleasant  IA  52641
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         1800; 1806; 2207
 
         Filed March 19, 1992
 
         MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                         :
 
         CHERYL BOESE,                   :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :         File No. 927540
 
         CECO BUILDING DIVISION,         :
 
                                         :      A R B I T R A T I O N
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         NATIONAL UNION & FIRE INS. CO.,:
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         ___________________________________________________________
 
         
 
         
 
         1800; 1806; 2207
 
         
 
              Claimant was deemed to have a 30 percent permanent partial 
 
         disability as a result of a work injury on August 28, 1989.  At 
 
         the time of the work injury, claimant tripped over a piece of 
 
         material on the floor.  She fell backwards and hit her tailbone 
 
         on the floor and she bumped her head and neck against the screw 
 
         of her hard hat.
 
         
 
              The treating neurologist related claimant's condition, at 
 
         least in part, to her work injury.  Claimant also had subsequent 
 
         injuries.  After her work injury, she stepped off a curb and 
 
         fell, she bumped her head, she slipped on ice and she injured her 
 
         back when moving furniture.
 
         
 
              Claimant has sustained an industrial disability because of 
 
         the work injury in question.  She can no longer hold her former 
 
         position.  She has made three good faith attempts to return to 
 
         work.  The attempts, by and large, occurred before most of the 
 
         subsequent injuries discussed, so this deputy is convinced that 
 
         claimant sustained some industrial disability because of her 
 
         August 28, 1989 work injury.
 
         
 
              Claimant is extremely motivated.  She is to be commended.  
 
         She has made every good faith effort imaginable to rehabilitate 
 
         herself.  She has sought vocational counseling, although her own 
 
         academic skills have been an impediment to any real progress.  
 
         She has no diploma or GED.  She has taken a typing course at the 
 
         community college.  She has attempted employment in a variety of 
 
         areas, but since her clerical skills are of the very lowest, she 
 

 
         
 
         
 
         
 
         
 
         
 
         
 
         has met with little success in the secretarial area.  Her earning 
 
         capacity has been reduced because of her work injury.  She can 
 
         only hold light duty type jobs.
 
         
 
              Claimant has resorted to restaurant work for employment.  
 
         She has only been able to find part-time work at 20-25 hours per 
 
         week.  Even now her wages are at the very low end of the scale.  
 
         Her chances for advancement with increased wages and benefits are 
 
         minimal at best.  Claimant has experienced an actual loss of 
 
         wages because of her work injury.
 
         In light of the foregoing factors, it is the determination of the 
 
         undersigned that claimant has a 30 percent permanent partial 
 
         disability which is attributable to claimant's work injury of 
 
         August 28, 1989.