Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY SCHEUERMANN,            :
 
                                          :
 
                 Claimant,                :        File No. 928147
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            OSCAR MAYER FOODS CORP.,      :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Scheurermann, claimant, commenced with the filing of a 
 
            petition on December 12, 1989 against Oscar Mayer & Co. 
 
            employer and self insured for worker's compensation benefits 
 
            as a result of an alleged occupational hearing loss.   The 
 
            parties appeared as follows:  the claimant in person and by 
 
            his counsel Steven Jayne of Des Moines, Iowa and Harry Dahl, 
 
            Sr. of Des Moines, Iowa for Oscar Mayer.
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant.
 
            
 
                 2.  Claimant's exhibits 1, 2 and 12 and Oscar Mayer's 
 
            exhibits A-C.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $243.51 per week.  Claimant's gross weekly wage equals 
 
            $377.92.  At the time of the alleged injury, claimant was 
 
            married and had one dependant child.  He is entitled to 
 
            three exemptions.
 
            
 
                 In connection with any medical benefits claimant may be 
 
            entitled to, the provider of the services would testify that 
 
            the fees were fair and reasonable and necessary for 
 
            treatment of the hearing loss 
 
            
 
                 Entitlement to temporary total disability or healing 
 
            period benefits is not an issue in this dispute.  Likewise, 
 

 
            
 
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            the commencement date of benefits and entitlement to medical 
 
            benefits are not issues for this decision.
 
            
 
                 There are no bifurcated claims.
 
            
 
                 The parties agree as to the amount of costs to be 
 
            taxed.
 
            
 
                 The defendants make no claim for employee 
 
            nonoccupational group health plan benefits paid prior to 
 
            hearing.
 
            
 
                                      ISSUES
 
            
 
                 1.  Whether claimant sustained an injury on December 
 
            12, 1987 which arose out of and in the course of his 
 
            employment.
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for permanent disability benefits and the commencement date 
 
            therefore.
 
            
 
                 3.  Oscar Mayer has pleaded two affirmative defenses, 
 
            lack of notice in conformance with Iowa Code section 85.23 
 
            (1989) and statute of limitations pursuant to Iowa Code 
 
            Section 85.26 (1989).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Claimant has worked for Oscar Mayer for 25 years as 
 
            a meat cutter.  He worked primarily on the cut floor pulling 
 
            loins, lifting and trimming neck bones.  Claimant last 
 
            worked for Oscar Mayer on December 30, 1987.  
 
            
 
                 2.  Claimant had hand problems prior to 1985 which 
 
            resulted in surgery.  Claimant's healing period apparently 
 
            lasted from October 1985 to February 1986.  A claim for 
 
            benefits relating to these problems is not in issue here.
 
            
 
                 3.  In January of 1988, claimant had open heart 
 
            surgery.  After he recovered from his heart surgery, he had 
 
            a second surgery on both of his hands.  The surgeries on his 
 
            hands prevented claimant from returning to work before the 
 
            plant closed.  While claimant intended to return to Oscar 
 
            Mayer, to resume his work, the plant closed February 1, 
 
            1989.
 
            
 
                 4.  Before claimant left the plant in December of 1987, 
 
            he had a hearing test in July of 1987.  Sometime before or 
 
            after this last test, but while claimant was still working 
 
            for Oscar Mayer, claimant had a conversation with the plant 
 
            nurse who indicated to him that his hearing was worse.  This 
 
            conversation occurred before the statutory injury occurrence 
 
            date which is one of three dates, December 30, 1897, 
 
            February 1, 1989, or March 13, 1989.   There is no evidence 
 
            in the record that claimant had contact with anyone at Oscar 
 

 
            
 
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            Mayer after December 30, 1987 regarding a hearing loss 
 
            however.  Oscar Mayer received no information or notice 
 
            regarding claimant's hearing loss before December 8, 1989.  
 
            See, Interrogatories 3, 8, Defense Exhibit C.
 
            
 
                 5.  Claimant had hearing tests at work in 1976, 1977, 
 
            1978, 1981, 1982, 1984, and July of 1987.  Additionally, 
 
            claimant had a hearing test by an independent audiologist on 
 
            March 13, 1989.  
 
            
 
                 6.  By 1981, Oscar Mayer was aware that cut floor 
 
            employees were exposed to noise level of 85db or more.  
 
            These employees were thereafter included in the annual 
 
            hearing test performed at the plant as part of the hearing 
 
            conservation program implemented in 1979 by Oscar Mayer.  A 
 
            noise monitoring study performed in 1987 indicates the 
 
            following noise levels in the Perry plant:
 
            
 
                 Location                 8 hr. Time Weighted 
 
                 Average                                 Exposure
 
            
 
                 Wanderer                 90db
 
            
 
                 Stomach-vise line        90db
 
            
 
                 Pull Leaf Lard           90db
 
            
 
                 Shaving                  98db
 
            
 
                 Dropping Heads           91db
 
            
 
                 Back Saw                 94db
 
            
 
                 Head Table               89db
 
            
 
                 Kill-Utility             98db
 
            
 
                 Apparently, a noise monitoring survey was not made of 
 
            the cut floor.  The claimant did indicate that his work 
 
            station was approximately 50 feet from the shaving area but 
 
            that the noise on the kill floor was louder than on the cut 
 
            floor.  There is no evidence of the noise levels on the cut 
 
            floor however.  Claimant did indicate his work area was 
 
            noisy however.  It is clear from this testimony and the 
 
            noise survey, that claimant worked in a noisy work 
 
            environment.  Some parts of the plant were presumptively 
 
            excessive noise areas.  See, Iowa Code 85B.5 (1989).  
 
            Claimant indicated that he worked on the kill floor for a 
 
            short period of time before transferring to the cut floor.  
 
            He was placed on light duty in 1986 on the kill floor.  He 
 
            did not work in the other areas identified in the noise 
 
            monitoring survey.
 
            
 
                 7.  There is no evidence in the record interpreting the 
 
            audiometric test results from Oscar Mayer from the period 
 
            1976 to 1987.  Additionally, the evidence showing a hearing 
 
            loss reflected in the test dated March 13, 1989 is 
 
            inconclusive.  The audiologist apparently marked on the 
 
            exhibit to show where the normal hearing range should be for 
 
            claimant but this information was not apparent from the face 
 

 
            
 
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            of the exhibit.  The audiologist indicated that there had 
 
            been a sensorineural loss of hearing but her follow-up 
 
            letter of July 28, 1989 does not indicate where the 
 
            claimant's normal hearing range is.  There is no other 
 
            expert testimony interpreting the results of the test 
 
            performed at Oscar Mayer or the test performed by the 
 
            audiologist.  Given the state of the documentary evidence 
 
            and the testimony adduced at the hearing, there is no way to 
 
            determine whether there has been a sensorineural loss of 
 
            hearing in one or both ears in excess of twenty-five 
 
            decibels.
 
            
 
                         CONCLUSIONS OF LAW AND ANALYSIS
 
            
 
                 1.  Whether claimant sustained an injury on December 
 
            12, 1987 which arose out of and in the course of his 
 
            employment.
 
            
 
                 Iowa Code chapter 85B (1989) provides benefits for 
 
            occupational hearing loss.  Iowa Code section 85B.4(1) 
 
            (1989) defines occupational hearing loss as permanent 
 
            sensorineural loss of hearing in one or both ears in excess 
 
            of 25 decibels which arises out of and in the course of 
 
            employment caused by prolonged exposure to excessive noise 
 
            levels.  Iowa Code section 85B.4(2) (1989) defines excessive 
 
            noise level to mean sound capable of producing occupational 
 
            hearing loss.  Iowa Code section 85B.5 (1989) further 
 
            defines excessive noise level as sound which exceeds the 
 
            times and intensities published in that section of the Iowa 
 
            Code chapter 85B (1989).  As with any type of workers' 
 
            compensation claim, including an occupational hearing loss 
 
            claim, the claimant has the burden of proving by a 
 
            preponderance of the evidence that he has a hearing loss due 
 
            to noise exposure in the work environment and it is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945).  
 
            A possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). 
 
            
 
                 The Iowa Supreme Court has indicated that there can be 
 
            a hearing loss even if the noise level is below the level 
 
            indicated in Iowa Code section 85B. 5 (989).  Muscatine 
 
            County v. Morrison, 409 N.W.2d 685, 688 (Iowa 1987).  The 
 
            Court also indicated that if the tables set out in Iowa Code 
 
            section 85B.5 (1989) were not implicated in claimant's 
 
            hearing loss, then the claimant must prove the loss of 
 
            hearing was due to exposure to sound at work capable of 
 
            producing that loss.  Duration and intensity of exposure 
 
            will be helpful to prove the necessary link between noise at 
 
            work and the hearing loss.  Muscatine County, 409 N.W.2d at 
 
            688.  
 
            
 
                 In this instance there is evidence that claimant worked 
 
            in a noisy environment, but that is the only thing the 
 
            claimant proved.  The evidence is reveals that Oscar Mayer 
 
            thought that the noise on the cut floor was at or exceeded 
 

 
            
 
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            85db.  However, the evidence is not clear that this was the 
 
            noise level all the time and that this level of noise caused 
 
            a permanent occupational hearing loss in the claimant.  The 
 
            claimant testified that the noise level on the cut floor was 
 
            not as loud as the kill floor.  The kill floor noise level 
 
            was at 98db.  Claimant also testified that he stood about 50 
 
            feet from the shaving area which had a noise level of 98db.  
 
            From this testimony, the evidence suggests that the noise 
 
            level was less than 98db.  Since the differential between 
 
            the range of noise levels is significant, it would be 
 
            speculative to conclude that the tables in Iowa Code section 
 
            85B.5 were implicated in this instance.  Such speculation 
 
            cannot form the basis for an award for worker's compensation 
 
            benefits. Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 737-738 (Iowa 1956).  
 
            
 
                 However, even assuming that the noise level on the cut 
 
            floor was excessively noisy and claimant was exposed to 
 
            constant noise level for nearly 25 years, which produced a 
 
            hearing loss as the court in Muscatine County, 409 N.W.2d at 
 
            688 suggests, this conclusion the application of the 
 
            duration and intensity test articulated in Muscatine County, 
 
            409 N.W.2d at 688, does not relieve claimant of his burden 
 
            to show not only a hearing loss but one that is permanent 
 
            and in excess of 25db.  There is no evidence in the record 
 
            that shows that claimant has suffered a permanent 
 
            sensorineural loss of hearing in one or both ears in excess 
 
            of twenty-five decibels.  The only evidence of sensorineural 
 
            hearing loss is a statement by the audiologist on her report 
 
            of March 13, 1989 that there has been a loss.  There is no 
 
            evidence of the amount of the loss.  The follow-up letter 
 
            dated July 27, 1989 from the audiologist reports the result 
 
            of the March 13, 1989 test.  But, there is no 
 
            interpretation, or any comparison of the audiometric tests 
 
            performed at Oscar Mayer and the test performed in March of 
 
            1989.  The Oscar Mayer audiometric tests submitted by 
 
            claimant are meaningless without some accompanying 
 
            interpretation and comparison to the last test performed in 
 
            March of 1989.  Additionally, the audiologist apparently 
 
            marked the normal hearing threshold areas on her report, but 
 
            this information is not on the exhibit submitted as part of 
 
            the record in this case.  There is no way to discern from 
 
            the report submitted how much of a loss the claimant has 
 
            suffered.  Consequently, claimant has failed to sustain his 
 
            burden of proof and takes nothing from this proceeding.
 
            
 
                 2.  Timely notification pursuant to Iowa Code section 
 
            85.23(1989)
 
            
 
                 Even though claimant has failed to sustain his burden 
 
            of proof in connection with showing a permanent 
 
            sensorineural hearing loss in excess of 25db, the issue of 
 
            failure to give notice must be considered because it is a 
 
            jurisdictional issue.  This issue requires a two pronged 
 
            analysis to determine whether the provisions of Iowa Code 
 
            section 85.23 (1989) as made applicable to occupational 
 
            hearing loss by Iowa Code section 85B.14 (1989) have been 
 
            satisfied.  The first question is whether the employer or an 
 
            employer's representative either had actual knowledge of the 
 
            occurrence of an injury or notice of some kind from the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            employee or the employee's representative that an injury had 
 
            occurred.  Secondly, the employer must be advised within 
 
            ninety days from the date of the occurrence of the injury.  
 
            If no notice is given, or the claimant fails to advise the 
 
            employer that an injury has occurred within 90 days of the 
 
            statutory injury occurrence date, the claim is barred.  The 
 
            notice requirement protects the employer by insuring that 
 
            the employer is alerted to the possibility of a claim so 
 
            that an investigation can be made while the claim is fresh. 
 
            Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 
 
            1985); Robinson v. Department of Transportation, 296 N.W.2d 
 
            809, 811 (Iowa 1980); Hobbs v. Sioux City, 2 N.W.2d 275, 276 
 
            (Iowa 1942).  However, any actual knowledge an employer has 
 
            of the reasonable possibility of a claim before the date of 
 
            discovery satisfies the notice requirement of Iowa Code 
 
            section 85.23 (1989) and the claimant is relieved of 
 
            notifying the employer further in connection with the 
 
            claimant's injury.  Dillinger, 368 N.W.2d at 181.
 
            
 
                 A defense of failure to give notice is an affirmative 
 
            defense and the burden on this issue lies with the employer.  
 
            Reddick v. Grand Union Tea Co., 296 N.W.2d 800, 803 (Iowa 
 
            1941); McMasters v. Hutchins, 120 N.W.2d 509, 514 (Iowa 
 
            1963).  
 
            
 
                 It is clear from the evidence that Oscar Mayer knew 
 
            that it operated a noisy plant in Perry.  It had a noise 
 
            survey performed in 1987 to verify this conclusion.  There 
 
            were excessively noisy areas in the plant including the 
 
            stomach vise line, the leaf lard area, the shaving area, the 
 
            dropping heads area, the back saw area, the head table area 
 
            and the kill floor.  Oscar Mayer had also included cut floor 
 
            workers in the annual hearing test program conducted in the 
 
            plant as part of the hearing conservation program for 
 
            workers who worked in environments where the noise levels 
 
            exceeded 85db.  More specifically, Oscar Mayer conducted 
 
            hearing tests for the claimant.  There is some evidence in 
 
            the record that suggests that Oscar Mayer knew claimant had 
 
            a hearing loss based on claimant's audiometirc tests 
 
            performed at the plant on an annual basis and statements 
 
            made by the plant nurse.  There appear to be changes in the 
 
            audiometric tests from year to year but the significance of 
 
            those changes is unknown because there is nothing in the 
 
            record explaining the meaning of the tests performed between 
 
            1976 and 1987.  Claimant worked near but not in any of the 
 
            presumptively excessive noise departments.  The evidence as 
 
            to what Oscar Mayer actually knew about claimant's hearing 
 
            loss is in equipoise.  Since Oscar Mayer has the burden on 
 
            the issue of notice, it has failed to present sufficient 
 
            evidence to show that it did not have actual knowledge of 
 
            the claimant's potential claim for an occupational hearing 
 
            loss.  Based on the tenets of Dillinger, the claimant is 
 
            relieved of the obligation to give the statutory notice 
 
            required by Iowa Code 85.23 (1989).
 
            
 
                 3.  Whether claimant timely filed his original notice 
 
            and petition to preserve his claim for benefits.
 
            
 
                 Oscar Mayer has also asserted a second affirmative 
 
            defense regarding the timeliness of the filing of claimant's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            original notice and petition.  Iowa Code section 85B.14 
 
            (1989) provides that the provisions of the workers' 
 
            compensation law in Iowa Code chapter 85 (1989) apply to 
 
            occupational hearing loss cases in so far as applicable and 
 
            when not inconsistent with Iowa Code chapter 85B (1989).  
 
            Therefore, the statute of limitations of Iowa Code section 
 
            85.26 (1) (1989) is applicable to this hearing loss claim 
 
            because there is no separate statute of limitations in Iowa 
 
            Code section 85B (1989).  Iowa Code section 85.26(1) (1989) 
 
            requires an original proceeding to be commenced within two 
 
            years of the date of injury.
 
            
 
                 The statutory injury occurrence date is controlled by 
 
            Iowa Code section 85B.8 (1989).  The Supreme Court has 
 
            interpreted this provision in John Deere Dubuque Works v. 
 
            Weyant, 442 N.W.2d 101, 104-105 (1989).  The Court found 
 
            that the Legislature gave claimants four alternative time 
 
            frames within which to calculate the statutory injury 
 
            occurrence date for an occupational hearing loss.  These 
 
            dates include the transfer date from an excessive noise 
 
            level employment by an employer, retirement date, a 
 
            termination date of the employer-employee relationship and 
 
            in the event of a layoff that lasts longer than one year, 
 
            the statutory injury occurrence date is six months after the 
 
            date of the layoff.  
 
            
 
                 In order to decide whether a claimant has been 
 
            transferred from an excessive noise environment, the court 
 
            adopted a four part test to use in analyzing whether a 
 
            change in positions would constitute a transfer under Iowa 
 
            Code section 85B.8 (1989).  A transfer under this provision 
 
            means:
 
            
 
                 1.  A clearly recognizable change in employment 
 
                 status;
 
            
 
                 2.  Which provides a reduction of noise exposure 
 
                 to a level that is not capable of producing an 
 
                 occupational hearing loss; and, 
 
            
 
                 3.  Which is permanent or indefinite in the sense 
 
                 that there is no reasonable expectation that the 
 
                 worker will be returned to a position with 
 
                 excessive noise level exposure in the ordinary 
 
                 course of operations in the employer's business.
 
            
 
                 4.  The transfer to another position must continue 
 
                 for at least six months.
 
            
 
                 Using the statutory guides and the analysis employed in 
 
            Weyant, there are three possible injury occurrence dates 
 
            that trigger the running of the statute of limitations.  
 
            These include December 30, 1987, the date claimant left his 
 
            employment and had heart surgery; February 1, 1989, the day 
 
            the Perry plant closed and the employee-employer 
 
            relationship terminated between Oscar Mayer and claimant; or 
 
            March 13, 1989, the day claimant had his hearing test and 
 
            was presumably advised that he had a progressive 
 
            sensorineural hearing loss.  Claimant filed this action on 
 
            December 12, 1989.  Using any of these dates, claimant has 
 

 
            
 
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            timely filed his petition and Oscar Mayer has failed to 
 
            sustain its burden in connection with its defense of statute 
 
            of limitations.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Claimant shall take nothing from this proceeding.
 
            
 
                 2.  The costs of this action are taxed to claimant.
 
            
 
                 Signed and filed this ____ day of March 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
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            Copies To:
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave Ste 201
 
            Des Moines Iowa 50312
 
            
 
            Mr Harry W Dahl Sr
 
            Attorney at Law
 
            974 73rd St Ste 16
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.20; 5-2208; 5-1403.30
 
                      Filed March 8, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY SCHEUERMANN,  :
 
                      :
 
                 Claimant, :       File No. 928147
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            OSCAR MAYER FOODS CORP., :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1402.20, 5-2208
 
            Claimant failed to sustain burden of proof on an 
 
            occupational hearing loss claim.  There was no evidence in 
 
            the record of a sensorineural hearing loss in excess of 
 
            25db.
 
            
 
            5-1403.30
 
            Employer pleaded two affirmative defenses; failure to give 
 
            notice and statute of limitations.  The evidence on the 
 
            first defense was in equipoise and the employer failed to 
 
            sustain its burden.  On the second issue, any of the injury 
 
            occurrence dates available in this dispute were within the 
 
            two year statutory bar deadline and the claim was not barred 
 
            on that basis.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HOWARD RAVELING,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 928403
 
            THORSTAD CONSTRUCTION         :
 
            COMPANY,                      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Howard Raveling, against his employer, Thorstad 
 
            Construction Co., and its insurance carrier, CNA Insurance, 
 
            defendants.  The case was heard on August 20, 1992, in Mason 
 
            City, Iowa, at the Cerro Gordo County Courthouse.  The 
 
            record consists of the testimony of claimant.  The record 
 
            also consists of the testimony of Larry Allen Bash, owner of 
 
            defendant employer.  Additionally, the record consists of 
 
            joint exhibits A through U.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 1.  Whether there is a causal relationship between the 
 
            work injury and any permanent disability;
 
            
 
                 2.  Whether claimant is entitled to any permanent 
 
            partial disability benefits; and,
 
            
 
                 3.  The appropriate rate to use when calculating any 
 
            permanent partial disability benefits.
 
            
 
                     
 
            
 
            
 
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                              FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant turned 60 years old on June 12, 1992.  He is a 
 
            man of small physical stature.  He completed the eighth 
 
            grade in Minnesota.  However, in 1946, he quit school in 
 
            order to assist his father on the family farm.  Claimant 
 
            worked on the farm until the fall of 1951 when he became 
 
            employed at Chicago Bridge and Iron.
 
            
 
                 In January of 1952, claimant enlisted in the U.S. Army.  
 
            He was in active duty for 23 1/2 months, and in January of 
 
            1954, he left active duty and was then on inactive duty for 
 
            the next six years.
 
            
 
                 In 1954, claimant returned to work on the family farm 
 
            for approximately one and one-half years.  Next, he returned 
 
            to construction work where he was involved in erecting farm 
 
            silos for three years.  After that job, claimant worked at a 
 
            filling station and then he again returned to farming.
 
            
 
                 In March of 1967, claimant commenced employment with 
 
            the then Thorstad Construction Company.  He was initially 
 
            hired as a shop worker.  However, after a year, he began 
 
            construction work at various job sites.  His duties included 
 
            repairing and building feed mills, grain elevators and 
 
            fertilizer plants.  Claimant also installed machinery, 
 
            mixers, grinders and baggers.  Claimant terminated his 
 
            employment with Thorstad in 1975.
 
            
 
                 Claimant then moved to Schaller, Iowa.  He was employed 
 
            by Hanson Silo from 1976 through 1978.  At Hanson, claimant 
 
            operated a concrete cement mixer, and he built concrete 
 
            structures.
 
            
 
                 In April of 1979, claimant returned to work for 
 
            Thorstad Construction at a higher rate of pay.  Mr. Larry 
 
            Bosch later purchased the company from its former owners.  
 
            Claimant remained employed by defendant employer for ten 
 
            years.  He worked up until the date on which he was injured.  
 
            The injury occurred on August 20, 1989.
 
            
 
                 Claimant was often a "working foreman" with supervisory 
 
            responsibilities.  During the course of his employment with 
 
            defendant employer, there were years where claimant worked 
 
            through the winter months.  There were also years where 
 
            claimant was periodically laid off during the winter months.
 
            
 
                 On the date of the work injury, claimant was working at 
 
            the AGP plant in Mason City.  A plant addition was in 
 
            progress.  Claimant began work at 6:30 a.m.  Generally, he 
 
            worked until 5:00 p.m.  However, on the date in question, 
 
            claimant had only worked 15 to 20 minutes before he 
 
            sustained his work injury.
 
            
 
                 At the time of the work injury, claimant had just begun 
 
            removing forms from hardened concrete.  He was bent over in 
 
            an attempt to pull up a stake.  He slipped in mud as he was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            pulling on the stake, and he felt a severe pain in his back 
 
            but below his belt line.  The parties stipulated that 
 
            claimant sustained an injury which arose out of and in the 
 
            course of his employment.  That day, claimant was able to 
 
            drive his own vehicle for a chiropractic treatment.  He saw 
 
            Richard W. Haas, D.C., immediatgely following the injury.  
 
            Dr. Haas diagnosed claimant's condition as:  "Lumbo-sacral 
 
            sprain/strain with associated para-lumbar muscle spasm and 
 
            muscle pain, caused by lifting a post out of the ground."  
 
            (Defendants' Exhibit L)  Dr. Haas referred claimant back to 
 
            his treating chiropractor, Brian Nook, D.C.  Dr. Nook had 
 
            treated claimant on prior occasions for preexisting back 
 
            problems.  Claimant, at all times, had been able to return 
 
            to work.
 
            
 
                 Defendants eventually authorized treatment for claimant 
 
            with John J. Dougherty, M.D., an orthopedic surgeon.  Dr. 
 
            Dougherty examined claimant on January 18, 1990.  The 
 
            orthopedic surgeon authored a report, dated January 23, 
 
            1990.  In the report, Dr. Dougherty opined:
 
            
 
                    In conclusion, I have reviewed the x-rays from 
 
                 Minnesota from Dr. Nook and basically they are 
 
                 about the same.  I think this patient's main 
 
                 problem is degenerated disc at L-5, S-1.  The 
 
                 question is, could he have a herniated disc too.  
 
                 I really don't think so.  We opted to give him a 
 
                 better back support, put him on some medicine.  
 
                 Will see him in three weeks.  In the meantime, 
 
                 we'll try to get an MRI.  I don't think this 
 
                 patient has a herniated disc, but also question if 
 
                 he should be doing this type of work.  If he has 
 
                 these tests and it proves to be negative, one 
 
                 could consider a back fusion.
 
            
 
            (Def. Ex. F, p. 2)
 
            
 
                 Dr. Dougherty continued to treat claimant with physical 
 
            therapy and medication.  The physician recommended a 
 
            functional capacity evaluation, which was duly performed.  
 
            The evaluation contained the following restrictions:
 
            a.  Sit 1-2 hours short durations.
 
            b.  Stand 1-2 hours short durations 48" working height       
 
            most comfortable.
 
            c.  Walk 5-6 hours moderate distances.
 
            d.  Occasionally:
 
                   bend/stoop
 
                   squat
 
                   crawl
 
                   climb stairs
 
                   reach above shoulder level
 
                   crouch
 
                   kneel
 
                   balance
 
                   push/pull
 
             e.  Occasionally lift:
 
                   up to 10 lbs. above shoulders
 
                   up to 24 lbs. desk/chair
 
                   up to 34 lbs. chair/floor
 
            Dr. Dougherty later opined that claimant could perform some 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            type of work but that claimant was precluded from returning 
 
            to his former position.  Dr. Dougherty opined that 
 
            vocational rehabilitation was in order.  Defendants 
 
            authorized medical management and vocational rehabilitation 
 
            through Intracorp, Inc.
 
            
 
                 During the course of its involvement in the case, 
 
            Intracorp, Inc. supplied three individuals to work with 
 
            claimant.  Most of the allocated resources of the company 
 
            were devoted to medical management rather than to vocational 
 
            rehabilitation.  However, Shelly Foss, the third specialist, 
 
            did provide some vocational rehabilitation services to 
 
            claimant.  After a period of time, Ms. Foss closed the file 
 
            on the matter.
 
            
 
                 Eventually, claimant received disability benefits 
 
            through the Social Security Administration.  At the time of 
 
            the hearing, claimant was not employed, however, he did 
 
            assist his spouse, Mary, with her antique business.  His 
 
            duties included driving to and from the location for an 
 
            antique show, loading and unloading antiques from the family 
 
            vehicle, setting up the booth, and assisting customers with 
 
            sales.  In a video tape which was shown during the hearing, 
 
            claimant was depicted performing many of the aforementioned 
 
            activities.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
            112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 Dr. Dougherty, the treating physician opined that:
 
            
 
                    I have reviewed this patient's chart with 
 
                 regard to attempting a disability rating.  I feel 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 this patient sustained a sprain superimposed upon 
 
                 his degenerative changes.  I feel the degenerative 
 
                 changes are of longstanding duration.  He denied 
 
                 having any significant problems before.  If that 
 
                 truly be the case, I am a little surprised why he 
 
                 hasn't returned to the way he was last August.  Be 
 
                 as it may, he says he has not.  I would feel he's 
 
                 probably sustained a disability rating of around 
 
                 7% permanent partial impairment of his body as a 
 
                 result of an aggravation apparently persisting and 
 
                 superimposed upon aggravation of his pre-existing 
 
                 condition.
 
            
 
            (Def. Ex. F, p. 7)
 
            
 
                 Dr. Dougherty's opinion was uncontroverted.  He 
 
            causally related claimant's condition, in part, to the 
 
            present work injury.  The orthopedic physician opined there 
 
            had been an aggravation to claimant's preexisting condition, 
 
            and that claimant was left with a physical impairment and 
 
            was unable to return to construction.  Dr. Dougherty's 
 
            opinion was given much weight since he was the authorized 
 
            treating physician.  There was no contrary evidence.  Dr. 
 
            Dougherty had ample opportunity to examine and treat 
 
            claimant.
 
            
 
                 This was a classic case under the rationale of Bearce 
 
            v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991).  Claimant's 
 
            permanent disability was attributable to the August 29, 1989 
 
            work injury.  Apportionment of disability was not proper 
 
            here because prior to the August 29, 1989 work injury 
 
            claimant was not industrially disabled.
 
            
 
                 Defendants did not meet their burden of proof regarding 
 
            the apportionment of any disability.  The burden of showing 
 
            that disability was attributable to a preexisting condition 
 
            was upon defendants.  Where evidence to establish a proper 
 
            apportionment was absent, the defendants were liable for the 
 
            entire disability that exists.  Bearce, 465 N.W.2d at 
 
            536-37; Varied Enterprises v. Sumner, 353 N.W.2d 407, 410-11 
 
            (Iowa 1984).  Here, defendants were liable for any existing 
 
            disability.
 
            
 
                 The claimant had the burden of proving by a 
 
            preponderance of the evidence that the injury of August 28, 
 
            1989, was causally related to the disability on which he 
 
            based 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 was insufficient; a 
 
            probability was necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection was essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Claimant had sustained a permanent impairment because 
 
            of his low back injury (Def. Ex. F-7).  He was functionally 
 
            impaired according to his treating orthopedist.  Defendant 
 
            employer had refused to accommodate claimant, despite the 
 
            fact that claimant had worked as a supervisor.  He was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            precluded from returning to construction as a working 
 
            foreman.  Claimant was permanently restricted.  Most 
 
            construction sites had working foremen.  Other than in the 
 
            construction industry, claimant had few transferable skills.  
 
            He did not even possess a GED.  Claimant had an eighth grade 
 
            education.  His last year in formal education occurred in 
 
            1946.
 
            
 
                 Claimant is 60 years old.  His age was a disadvantage.  
 
            Prior to the work injury, claimant had no thoughts of 
 
            retirement, despite claimant's advancing age.  Claimant's 
 
            age had an effect upon claimant's industrial disability.  
 
            His age placed him at a stage in life when most workers were 
 
            retired or were contemplating retirement.  Claimant's injury 
 
            deprived him of earning capacity, but claimant lost less 
 
            earning capacity than the earning capacity suffered by a 
 
            much younger worker with a comparable injury.  The approach 
 
            of later years when it could be anticipated that under 
 
            normal circumstances a worker would be retiring, was without 
 
            some clear indication to the contrary, a factor which could 
 
            be considered in determining the loss of earning capacity or 
 
            industrial disability which was causally related to the 
 
            injury.  Merrill v. Eaton Corporation, 707565 (Appeal Dec. 
 
            May 9, 1990); Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979).
 
            
 
                 In the case at hand, defendants emphasized the factor 
 
            of motivation.  They maintained that claimant had lacked the 
 
            motivation necessary to obtain his GED and to find another 
 
            position.  While it was true that claimant had not followed 
 
            through and obtained his GED, defendants had been more 
 
            interested in the medical management of the case rather than 
 
            in the rehabilitation.
 
            
 
                 Claimant was not precluded from all employment.  That 
 
            fact was evidenced because claimant regularly assisted his 
 
            spouse with her antique business.  The video tape 
 
            illustrated some of the duties which claimant could perform 
 
            without visible strain (Def. Ex. E).
 
            
 
                 Therefore, based upon all of the foregoing, it is the 
 
            determination of the undersigned that claimant is 
 
            industrially disabled.  He is entitled to a permanent 
 
            partial disability of 70 percent, commencing from the 
 
            stipulated date of April 17, 1990.
 
            
 
                 The final issue to address concerns the rate to be used 
 
            in calculating claimant's weekly benefits.  Defendants 
 
            maintained claimant was a seasonal employee and that his 
 
            weekly benefit rate was calculated pursuant to section 
 
            85.36(9).  That section provided that:
 
            
 
                    In occupations which are exclusively seasonal 
 
                 and therefore cannot be carried on throughout the 
 
                 year, the weekly earnings shall bel noti350) weeks of permanent partial disability benefits from 
 
            April 17, 1990 at the stipulated rate of two hundred thirty-
 
            seven and 17/100 dollars ($237.17) per week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten (10) percent per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants shall take credit for all benefits 
 
            previously paid.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 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 November, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Steve Hamilton
 
            Attorney at Law
 
            606 Ontario St
 
            P O Box 188
 
            Storm Lake IA 50588
 
            
 
            Mr Michael A McEnroe
 
            Attorney at Law
 
            3151 Brockway Rd
 
            P O Box 810
 
            Waterloo IA 50704
 
            
 
            
 
 
         
 
 
 
 
 
 
 
                                            3000; 1800; 
 
                                            Filed November 10, 1992
 
                                            Michelle A. McGovern
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         HOWARD RAVELING,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 928403
 
         THORSTAD CONSTRUCTION         :
 
         COMPANY,                      :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         CNA INSURANCE COMPANY,        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         3000
 
         Claimant was employed as a working foreman in the construction 
 
         industry.  His employer was engaged in the construction of metal 
 
         buildings, bins and fixtures used in agriculture.  Testimony was 
 
         elicited that during some winter months, claimant had worked but 
 
         that during other winter months, claimant was "laid off."  
 
         Testimony was also elicited that employees of other construction 
 
         companies were engaged in similar tasks during the winter months.  
 
         It was held that claimant was not a seasonal employee under 
 
         section 85.36(9).
 
         
 
         1800
 
         Claimant was awarded an industrial disability of 70 percent.  He 
 
         was functionally impaired because of a low back injury.  The 
 
         treating orthopedist precluded claimant from returning to the 
 
         construction industry as a working foreman.  The treating 
 
         physician imposed rather severe restrictions on claimant.  
 
         Claimant was 60 years old.  He left school in 1946 when he was in 
 
         the eighth grade.  Claimant possessed no GED.  He had few 
 
         transferable skills outside of the construction industry.  
 
         Defendant employer would not accommodate claimant, despite the 
 
         fact that claimant had performed duties as a foreman.
 
         Claimant was capable of performing some duties.  For several 
 
         years, he had assisted his spouse in her antique business.  His 
 
         duties, as seen on a surveillance tape, included driving to and 
 
         from the location of any antique show, loading and unloading 
 
         antiques from the family vehicle, setting up booths, and 
 
         assisting customers with sales.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHLEEN SUE FOX,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 928436
 
            ALTOONA MANOR CARE CENTER,    :
 
                                          :            O R D E R
 
                 Employer,                :
 
                                          :       C L A R I F Y I N G
 
            and                           :
 
                                          :         D E C I S I O N
 
            NATIONAL UNION FIRE INSURANCE,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 The parties move to clarify the decision filed January 
 
            31, 1992, with reference to entitlement to temporary total 
 
            disability benefits and rate of compensation.
 
            findings of fact
 
            
 
                 The parties stipulated in the prehearing report that 
 
            claimant was off work from September 8, 1989 through October 
 
            6, 1990.  It was found that claimant returned to work on 
 
            October 7, 1990.  This period of absence from work was due 
 
            to the work injury.
 
            
 
                 With reference to rate, the parties stipulated that 
 
            claimant is entitled to a rate of compensation appropriate 
 
            for a gross weekly rate of $212.55, single status and 
 
            entitlement to one exemption.  The commissioner's published 
 
            rate booklet calls for a rate of compensation based on those 
 
            stipulations of $134.57.
 
            conclusions of law
 
            
 
                 Claimant is entitled to temporary total disability 
 
            benefits from September 8, 1989 through October 6, 1990 at 
 
            the rate of $134.57 per week.
 
            order
 
            
 
                 Any portion of the decision inconsistent with the above 
 
            is modified accordingly.  The balance of the decision is 
 
            reaffirmed.
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            
 
                 
 
            Mr. Charles S. Crook, III
 
            Attorney at Law
 
            Suite 1100  Fleming Bldg
 
            218 Sixth Ave
 
            Des Moines  IA  50309
 
            
 
            Mr. Andrew J. Bracken
 
            Attorney at Law
 
            100 Court Ave  Suite 600
 
            Des Moines  IA  50309
 
            
 
 
            
 
          
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RANDY BEARD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 928508
 
            LAND O LAKES,  
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            KEMPER INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Randy Beard, against his employer, Land O Lakes, 
 
            and its insurance carrier, Kemper, to recover benefits under 
 
            the Iowa Workers' Compensation Act, as a result of an injury 
 
            sustained on September 7, 1989.  This proceeding came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Waterloo, Iowa, on June 15, 1993.  A first 
 
            report of injury has been filed.
 
            
 
                 The record consists of the testimony of claimant, of 
 
            Robert Beard, of Ken Joseph Wragge, of Clara Johnson, Nolan 
 
            Norris, and of Jamie C. Scott as well as of claimant's 
 
            exhibits 1 through 4 and defendants' exhibits A.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the hearing 
 
            report, and the oral stipulations of the parties at hearing, 
 
            the parties have stipulated to the following:
 
            
 
                 (1)  An employer-employee relationship existed between 
 
            claimant and the named employer at the time of the injury;
 
            
 
                 (2)  Claimant did receive an injury which arose out of 
 
            and in the course of his employment on September 7, 1989;
 
            
 
                 (3)  That injury was causally connected with a period 
 
            of temporary total disability for which benefits have been 
 
            previously paid;
 
            
 
                 (4)  The commencement date for any permanent benefits 
 
            due claimant is April 9, 1990;
 
            
 
                 (5)  Defendants have paid claimant 60 weeks of 
 
            permanent partial disability benefits at the weekly rate of 
 
            $266.42; and the claimant, at time of injury, had a gross 
 
            weekly wage of $450 and was single and entitled to one 
 
            exemption resulting in a weekly rate of $266.42.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Issues remaining to be decided are:  
 
            
 
                 (1)  Whether a causal relationship exists between the 
 
            injury and claimed permanent disability; and 
 
            
 
                 (2)  The nature and extent of any permanent disability 
 
            benefit entitlement.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 32-year-old single man who has worked for 
 
            the employer for 12 years.  His prior work experience has 
 
            been in general labor and farming.  Claimant is a high 
 
            school graduate who characterized his grades as average.  
 
            Claimant reported having difficulties with reading, having 
 
            repeated the second grade, and of having worked with a 
 
            speech pathologist in third or fourth grade.  
 
            
 
                 On September 7, 1989, claimant received an injury 
 
            arising out of and in the course of his employment while 
 
            stacking commercial cartons of margarine, weighing from 10 
 
            to 30 pounds, onto a pallet to a height of approximately six 
 
            feet.  Claimant initially saw his family doctor and then 
 
            saw, A. Donald Smith, M.D., the company physician.  Dr. 
 
            Smith placed claimant on strict bedrest and prescribed 
 
            Motrin and Flexeril.  Claimant did not improve and Dr. Smith 
 
            referred claimant to _______ Crouse, M.D., an orthopedic 
 
            surgeon.  The insurance carrier subsequently referred 
 
            claimant to Jitu D. Kothari, M.D., a board certified 
 
            orthopedic surgeon who became claimant's treating physician.  
 
            
 
                 Dr. Kothari initially treated claimant conservatively 
 
            with complete bedrest, epidural cortisone injection, 
 
            exercise, physical therapy and analgesic and muscle relaxant 
 
            medication.  A lumbar myelogram was performed November 11, 
 
            1989.  Dr. Kothari interpreted the myelogram as showing 
 
            spondylolisthesis at the L4-5 level, with 1 cm anterior 
 
            displacement of L4 over L5.  The myelogram also revealed a 
 
            nerve root defect on the left L4-5, with nonfeeling of the 
 
            left L5 nerve root consistent with claimant's clinical 
 
            findings of left leg pain.  Dr. Kothari performed a 
 
            bilateral, posterolateral spinal fusion of L4 through S1 
 
            using a donor bone graft on December 11, 1989.  
 
            
 
                 On April 5, 1990, Dr. Kothari reported that claimant 
 
            was "okay for a sit-down job only", with minimal walking and 
 
            standing and no lifting of greater than ten pounds and no 
 
            bending, twisting and turning with his lower back as of 
 
            Monday, April 9, 1990.  On June 8, 1990, Dr. Kothari release 
 
            claimant for fork lift truck driving and continued his ten 
 
            pound lifting restriction as well as his restrictions on 
 
            twisting, turning or bending with the back.  On July 25, 
 
            1990, Dr. Kothari characterized claimant as clinically doing 
 
            well and stated it was okay for claimant to return to his 
 
            previous job, with the only restriction being a 30 pound 
 
            weight restriction.  On March 14, 1991, Dr. Kothari opined 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that pursuant to page 73 of the AMA Guides, claimant had a 
 
            12 percent permanent impairment. 
 
            
 
                 Arnold E. Delbridge, M.D., also a board certified 
 
            orthopedic surgeon, independently evaluated claimant on 
 
            February 4, 1993 and issued medical reports on April 19, 
 
            1993, and May 3, 1993.  Dr. Delbridge characterized 
 
            claimant's fusion as solid.  Dr. Delbridge found claimant 
 
            had the following losses of lumbar range of motion:  20 
 
            degrees flexion; 10 degrees extension; 5 degrees side to 
 
            side; and 10 degrees bilateral rotation.  Dr. Delbridge 
 
            characterized claimant as having a permanent partial 
 
            impairment of 18 percent of the body as a whole pursuant to 
 
            the combined values charts under the AMA Guides, stating 
 
            that that represented 13 percent as result of a two-level 
 
            operated spondylolisthesis and 6 percent as a result of the 
 
            fusion.  Dr. Delbridge agreed that claimant's maximum 
 
            lifting should be 30 pounds with repetitive lifting of 15 to 
 
            20 pounds only and no lifting below knee level.  Delbridge 
 
            reported that claimant should not do continuous twisting and 
 
            turning while lifting and should not engage in prolonged 
 
            above-shoulder work.  Given the impairment assignations of 
 
            both Dr. Kothari and Dr. Delbridge, it is expressly found 
 
            that claimant has a moderately severe permanent partial 
 
            impairment of his lumbar spine on account of his 
 
            spondylolisthesis and subsequent surgical fusion.
 
            
 
                 Dr. Delbridge reported claimant's prognosis as guarded 
 
            and stated that claimant "may very well" gradually 
 
            deteriorate the disc at the L3-4 level given claimant's 
 
            increased concentration of force on account of his fusion.  
 
            Dr. Delbridge also opined that it was "entirely possible" 
 
            that claimant "may run into further difficulties down the 
 
            line, on account of his injury and fusion."  Dr. Delbridge's 
 
            comments in this regard are couched in the language of 
 
            possibility and not probability.  It is expressly found that 
 
            the doctor's remarks are speculative only and do not reflect 
 
            claimant's actual level of physical residuals as a result of 
 
            his injury at time of hearing.  Dr. Delbridge's remarks, 
 
            therefore, are given little weight.
 
            
 
                 Claimant returned to light duty work on April 9, 1990 
 
            and subsequently returned to his pre-injury job on a full 
 
            duty basis with accommodation for his 30 pound lifting 
 
            restriction.  Claimant reported that he does not now stack 
 
            but does do machine running and margarine packing.  Claimant 
 
            reported that he uses a fork lift or seeks help from other 
 
            employees where substantial lifting is involved.  In his 
 
            recreational life, claimant continues to hunt, albeit with 
 
            some difficulty.  He reports he is unable to play softball, 
 
            or snow and water ski.  He is able to motorcycle ride and 
 
            golf occasionally.  Claimant is also unable to do heavy 
 
            yard, wood cutting, fencing or farm work as he had done 
 
            prior to his injury.  Claimant currently earns $13.25 per 
 
            hour.  He could not recall his wage at the time of the 
 
            injury.  The record reflects claimant has received plant 
 
            wide wage increases since his injury, however.  Claimant has 
 
            not missed work on account of his back but has taken 
 
            voluntary layoff since his injury in order to "do things he 
 
            wanted to do."  Claimant has neither been criticized or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disciplined for his job performance since his return to 
 
            work.  
 
            
 
                 Claimant stated that he had not bid on the material 
 
            coordinator job when posted because it required lifting.  He 
 
            had not discussed whether the job could be modified to 
 
            accommodate his lifting restriction with management before 
 
            choosing not to apply.  
 
            
 
                 Claimant's seniority is such that claimant likely will 
 
            not be subject to involuntary layoff with the employer.  
 
            Claimant expressed a subjective concern that the employer's 
 
            plant will close.  The employer is currently making monetary 
 
            investments to expand the Hudson plant.  Given those 
 
            activities, consideration of a plant closing that would end 
 
            claimant's employment with this employer would be 
 
            speculative.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first concern is whether claimant has shown a 
 
            causal relationship between his injury and claimed 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 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 There is little direct expert testimony relating 
 
            claimant's current problems to his work injury.  The history 
 
            of the work injury, claimant's medical history and treatment 
 
            subsequent to the injury, and 30 pound permanent lifting 
 
            restriction the treating physician imposed subsequent to the 
 
            injury and the assignation of functional impairment ratings 
 
            subsequent to the injury make it more probable than not that 
 
            claimant has permanent residuals resulting in permanent 
 
            disability subsequent to the injury.  Therefore, claimant 
 
            has established a causal relationship between his work 
 
            injury and his permanent disability.  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 We next consider the question of the extend of 
 
            claimant's permanent partial disability entitlement.  As 
 
            claimant's injury is in the body as a whole his disability, 
 
            of necessity, is industrial disability.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant has suffered no actual loss of earnings on 
 
            account of his work injury.  He returned to work in the job 
 
            he held prior to the injury albeit with accommodation of his 
 
            30 pound lifting restriction.  Claimant's current job is 
 
            within claimant's educational attainment, work 
 
            qualifications, and experience.  It does not appear that 
 
            claimant will have great difficultly in continuing to do his 
 
            job or that claimant is likely to need to involuntarily 
 
            leave his employment with employer in the foreseeable 
 
            future.  Claimant's functional impairment, as noted above, 
 
            is moderately severe and with his 30 pound lifting 
 
            restriction is likely to preclude claimant voluntarily 
 
            leaving this employment and easily attaining another heavy 
 
            labor job.  Claimant's educational qualification and 
 
            experience all indicate that, but for his functional 
 
            impairment and restriction, he would be more employable in 
 
            heavy labor jobs than in the moderate labor jobs for which 
 
            his lifting restriction now suits him.  Claimant's inability 
 
            to easily secure other employment for which he would 
 
            otherwise be suited is a factor that may properly be 
 
            considered in assessing claimant's current industrial loss 
 
            of earnings capacity.  When that preclusion is considered 
 
            with claimant's functional impairment, lifting restriction, 
 
            education, qualifications, and past employment, claimant is 
 
            found to have sustained a 15 percent loss of earnings 
 
            capacity. 
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                          ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for seventy-five (75) weeks at the rate of two 
 
            hundred sixty-six and 42/100 dollars ($266.42) with those 
 
            benefits to commence on April 9, 1990. 
 
            
 
                 Defendants receive credit for benefits already paid.
 
            
 
                 Defendants pay any accrued amounts in a lump sum.
 
            
 
                 Defendants pay interest pursuant to section 86.30.
 
            
 
                 Defendants pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as required by 
 
            the agency.
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert C. Andres
 
            Attorney at Law
 
            First National Bldg., 6th Floor
 
            E. 4th & Sycamore
 
            PO Box 2634
 
            Waterloo, IA  50604-2634
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, IA  52801
 
            
 
            
 
            
 
 
            
 
               
 
 
 
          
 
                                                 51803
 
                                                 Filed June 28, 1993
 
                                                 Helenjean M. Walleser
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RANDY BEARD,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 928508
 
            LAND O LAKES,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            KEMPER INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            
 
                 Claimant, who had returned to work with the employer in 
 
            his pre-injury job with accommodation of his 30 pound 
 
            lifting restriction, awarded 15 percent permanent partial 
 
            disability subsequent to a work injury and related L4-S1 
 
            fusion for work-related spondylolisthesis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BETH WOLCOTT,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 928917
 
            BIL MAR FOODS, INC.,          :
 
                                          :
 
                 Employer,                :           N U N C
 
                                          :
 
            and                           :            P R O
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :           T U N C
 
                                          :
 
                 Insurance Carrier,       :          O R D E R
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On January 23, 1992, the undersigned filed an 
 
            arbitration decision in which he made an inadvertent error 
 
            that should be corrected.
 
            
 
                 The undersigned, on page 9 of said decision, in 
 
            applying the provisions of 85.34(2)(s), took the 5 percent 
 
            permanent impairment to the left upper extremity and the 18 
 
            percent permanent impairment to claimant's right upper 
 
            extremity and converted them directly on the combined charts 
 
            without first applying the conversions of the upper 
 
            extremities to the body as a whole.  Instead of the combined 
 
            impairment being 22 percent permanent impairment, it should 
 
            be 14 percent permanent impairment, taking the 3 percent 
 
            body as a whole after being converted from the 5 percent 
 
            upper extremity and taking the 18 percent upper extremity 
 
            into an 11 percent body as a whole.
 
            
 
                 Therefore, the undersigned should have found that the 
 
            number of weeks to which the claimant is entitled to 
 
            permanent partial disability benefits is 70 weeks instead 
 
            110 (500 x 14 = 70).
 
            
 
                 The undersigned inserts the following in lieu of the 
 
            last paragraph of the Conclusions of Law:
 
            
 
                 Claimant did not have any permanent impairment or 
 
            disability on the date she began work with defendant 
 
            employer on June 12, 1984.  Under the provisions of 
 
            85.34(2)(s), claimant is entitled under the combined charts 
 
            to 70 weeks of permanent partial disability benefits at the 
 
            rate of $194.32 per week based on the fact that claimant has 
 
            a combined permanent partial impairment on the combined 
 
            charts of 14 percent.
 
            
 
                 The undersigned inserts the following in lieu of the 
 
            first paragraph of the Order:
 
            
 
                 That defendants shall pay unto claimant seventy (70) 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred ninety-four and 32/100 dollars ($194.32), 
 
            commencing August 8, 1990.
 
            
 
                 The above paragraphs shall be inserted as if they were 
 
            in the original decision.  All the other provisions shall 
 
            stand as previously set out therein unless inconsistent with 
 
            the above changes therein.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Michael Chozen
 
            Attorney at Law
 
            832 Lake St
 
            Spirit Lake IA 51360
 
            
 
            Mr Charles T Patterson
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAN PATTERSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 928979
 
                                          :
 
            JCA EXPRESS, INC.,            :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE COS.,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dan 
 
            Patterson against his former employer JCA Express, Inc., 
 
            based upon an injury that occurred on August 31, 1989.  
 
            Claimant seeks a determination of his entitlement to healing 
 
            period and permanent partial disability.
 
            
 
                 The case was heard at Des Moines, Iowa on May 3, 1991.  
 
            The evidence consists of testimony from Dan Patterson, Jerry 
 
            Ayers, Neva Jorgenson and Doris Downs.  The record also 
 
            contains jointly offered exhibits 1 through 5.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Dan Patterson is a 34-year-old married man who lives at 
 
            Rural Route 1, Peru, Iowa on a 260-acre farm.  Patterson 
 
            dropped out of high school at the tenth grade level.  He 
 
            related that school was difficult for him and that his 
 
            grades were bad.  Patterson completed a course in 
 
            agriculture during the early 1980s.  He obtained a GED in 
 
            1986.
 
            
 
                 After leaving school, Patterson entered the United 
 
            States Marine Corps for three years.  Following his 
 
            discharge, he worked for approximately a year operating a 
 
            brake press for Fawn Engineering.  Patterson then 
 
            successfully operated a restaurant and a tavern for several 
 
            years before returning to Fawn Engineering where he worked 
 
            as an assembler.  Patterson next worked as an electrician's 
 
            helper for three or four months for a company that installed 
 
            wiring in grain dryers.
 
            
 
                 Patterson started farming in 1985.  He grows row crops 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and raises cattle.  He has continued that operation and at 
 
            the present time has 300 acres of crops and approximately 60 
 
            head of cattle.
 
            
 
                 In 1986, Patterson began working for Madsen Truck Lines 
 
            as an over-the-road driver.  A few months later, he obtained 
 
            employment with JCA Express, Inc., again working as an 
 
            over-the-road driver.  In three or four months, he got a job 
 
            as a city driver which allowed him to be home every night.  
 
            The work required that he handle, load and unload freight, 
 
            most of which was by hand.  He initially had no problems 
 
            performing the job.  He worked as needed by JCA and took 
 
            time off for his farm work.
 
            
 
                 On August 31, 1989, Patterson injured his back while 
 
            attempting to shift a pallet loaded with paper plates in 
 
            order to prevent a forklift driver from tearing the paper 
 
            which covered them.  The injury was reported promptly.  
 
            Claimant obtained treatment from local physician Edward 
 
            Miles, D.O., who in turn referred claimant to orthopaedic 
 
            surgeon Martin Rosenfeld, D.O.  Patterson was off work from 
 
            September 1, 1989 until September 25, 1989 when he resumed 
 
            work with a restriction against heavy lifting (exhibit 4, 
 
            page 31A).  In a report dated September 29, 1989, Dr. Miles 
 
            indicated that claimant had been able to resume regular work 
 
            and that no permanent defect was expected (exhibit 4, page 
 
            28).  Patterson was assigned work which consisted only of 
 
            driving the truck.  He was given no duties which would 
 
            require loading or unloading.  According to Patterson, even 
 
            simply driving aggravated his back severely and he sought 
 
            additional medical care from Dr. Rosenfeld on October 3, 
 
            1989 (exhibit 4, page 54).
 
            
 
                 At times over the years of his employment with JCA 
 
            Express, Patterson had difficulties getting along with some 
 
            of his employer's customers and in fact had caused the 
 
            employer to lose some business.  On September 27, 1989, 
 
            Patterson was observed in an area of Des Moines which is 
 
            commonly frequented by prostitutes and was observed picking 
 
            up a woman in that area and then returning her approximately 
 
            15 minutes later.  Neva Jorgenson, who observed the 
 
            activity, used the company name from the truck Patterson was 
 
            driving to locate the company and reported the incident.  
 
            Patterson was subsequently discharged for misconduct.  He 
 
            received the discharge notice by certified mail on or about 
 
            September 30, 1989 (exhibit 1, pages 9-12).  Jerry Ayers, 
 
            JCA Express, Inc., president, related that he did not 
 
            mention the incident with the alleged prostitute in the 
 
            original notification since he did not want to cause 
 
            Patterson problems with his family, but that he did use the 
 
            information when Patterson sought unemployment benefits.
 
            
 
                 After returning to Dr. Rosenfeld, Patterson was 
 
            initially treated with physical therapy until mid-November 
 
            1989 (exhibit 4, pages 34-51).  An epidural steroid 
 
            injection was administered on November 17, 1989 without 
 
            significantly improving Patterson's condition (exhibit 4, 
 
            page 64).  A radiology report dated December 5, 1989 
 
            reported minimal spondylosis of the mid and thoracic spine 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with mild midlumbar rotoscoliosis and some desiccation of 
 
            the L4-5 intervertebral disc (exhibit 4, pages 79 and 80).
 
            
 
                 The defendants became dissatisfied with claimant's 
 
            course of recovery and directed him to seek further care 
 
            from orthopaedic surgeon William R. Boulden, M.D.  Dr. 
 
            Boulden diagnosed claimant as having a degenerative lesion 
 
            that has been significantly aggravated (exhibit 4, page 82).  
 
            He related the aggravation to the August 31, 1989 injury and 
 
            characterized it as an aggravation of a preexisting 
 
            condition (exhibit 4, page 84).  Dr. Boulden treated 
 
            claimant with an exercise program and a corset.  At an entry 
 
            dated February 27, 1990, Dr. Boulden reported that claimant 
 
            has reached maximum medical improvement, but that he was 
 
            unable to return to truck driving as it would definitely 
 
            aggravate his back.  Dr. Boulden reported that claimant 
 
            needs a job where he can change positions freely and avoid 
 
            repetitive bending and twisting.  As a result of a 
 
            functional capacity assessment, a report dated March 6, 1990 
 
            indicates that claimant is classified as having the capacity 
 
            to perform medium or light work and also that he has a ten 
 
            percent permanent functional impairment as a result of his 
 
            back condition (exhibit 4, pages 93 and 94).
 
            
 
                 It is found that the assessment of this case as made by 
 
            Dr. Boulden is correct.  Dr. Boulden is a well-qualified 
 
            orthopaedic surgeon who is fully familiar with the 
 
            claimant's objective medical condition.  Dr. Boulden would 
 
            not be likely to be swayed by subjective complaints if there 
 
            were not objective evidence to corroborate them.
 
            
 
                 Patterson now limits his activities to farming in a 
 
            quite modern farming operation which involves little 
 
            physical labor.  He has not sought other work.  He performs 
 
            custom baling and mowing.  Patterson operates a modern 
 
            tractor which would be expected to be much more comfortable 
 
            than the tractors in common use 20 years ago.  His statement 
 
            comparing its comfort to a Cadillac is an exaggeration.  
 
            During 1990, he earned approximately $10,000 performing 
 
            custom baling.  His profit from farming in 1990 was likewise 
 
            approximately $10,000.  Patterson's annual earnings from 
 
            truck driving with JCA Express had been in the range of 
 
            $6,000 or $7,000 dollars.  He drove intermittently as needed 
 
            by the employer and took time off as needed for his farming 
 
            activities.
 
            
 
                                conclusions of law
 
            
 
                 The ultimate issues in the case are the extent of the 
 
            healing period and the amount of permanent partial 
 
            disability compensation.  The healing period under section 
 
            85.34(1) of The Code ends at the time the employee returns 
 
            to work, when it is medically indicated that further 
 
            significant improvement from the injury is not anticipated 
 
            or at such time as the employee is medically capable of 
 
            returning to employment substantially similar to that in 
 
            which he was engaged at the time of injury, whichever occurs 
 
            first.
 
            
 
                 As established by Dr. Boulden, Dan Patterson is not 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            medically capable to returning to substantially similar 
 
            employment.  The healing period therefore ends with either a 
 
            return to work or with the attainment of maximum medical 
 
            improvement.  According to Dr. Boulden, maximum medical 
 
            improvement occurred February 27, 1990.  That date is 
 
            consistent with the course of treatment that had been 
 
            provided.  The question then becomes whether or not whatever 
 
            farming activities were performed would have constituted a 
 
            return to work.  It is not every bit of gainful activity 
 
            which constitutes a sufficient return to work to terminate a 
 
            healing period.  The requisite return to work must be 
 
            substantial gainful activity.  Merely hauling a load of 
 
            grain to the local elevator does not constitute sufficient 
 
            substantial gainful activity to end the healing period.  A 
 
            return to work usually indicates recuperation from the 
 
            injury to the point that the individual is capable of 
 
            resuming what is essentially full-time employment in order 
 
            for the individual to earn a living.  The evidence in this 
 
            case shows that Patterson had not recuperated, was still 
 
            under aggressive medical treatment and had not resumed 
 
            activities which were in the nature of what would normally 
 
            be considered full-time gainful employment.  While he likely 
 
            performed some farm chores, farming is not a particularly 
 
            active vocation during the winter months.  Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice, section 13-1; 
 
            Donoho v. T & T Services, file number 722150 (Arb. Decn., 
 
            February 28, 1989).  Light work does not terminate the 
 
            healing period, except in the temporary partial disability 
 
            setting.  Webb v. Lovejoy Constr. Co., II Iowa Industrial 
 
            Commissioner Report 430, 433 (1981).  It is therefore 
 
            determined that the correct end of the healing period in 
 
            this case is February 27, 1990, the point at which it was 
 
            medically indicated that further significant improvement 
 
            from the injury was not anticipated.
 
            
 
                 As 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 v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            Aggravation of a preexisting condition is one form of 
 
            compensable injury.  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).
 
            
 
                 Much was made of the fact that claimant's employment 
 
            was terminated for misconduct.  The penalty for that 
 
            misconduct was the denial of unemployment benefits.  
 
            According to the medical evidence in the record, however, it 
 
            is well established by Dr. Boulden that claimant is not 
 
            physically capable of resuming work as a truck driver.  
 
            According to Jerry Ayers, he would not hire a person to work 
 
            as a driver with the medical restrictions which have been 
 
            placed upon Dan Patterson.  While Ayers indicated that he 
 
            would have accommodated Patterson's restrictions, absent the 
 
            misconduct, there is nothing in the record which explains 
 
            how the claimant could have engaged in driving a truck and 
 
            stayed within the restrictions.  The assessment by Dr. 
 
            Boulden is correct.  Claimant is now engaged in a farming 
 
            operation which seems appropriate for him.  When all the 
 
            pertinent factors of industrial disability are considered, 
 
            it is concluded that Dan Patterson sustained a 25 percent 
 
            permanent partial disability as a result of the August 31, 
 
            1989 injury.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Dan 
 
            Patterson twenty-five (25) weeks of compensation for healing 
 
            period with three and four-sevenths (3 4/7) weeks thereof 
 
            payable commencing August 31, 1989 and with the remaining 
 
            twenty-one and three-sevenths (21 3/7) weeks payable 
 
            commencing October 1, 1989, all payable at the stipulated 
 
            rate of one hundred fifty-nine and 26/100 dollars ($159.26) 
 
            per week.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Dan Patterson 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            one hundred twenty-five (125) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of one 
 
            hundred fifty-nine and 26/100 dollars ($159.26) per week 
 
            payable commencing February 28, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            for all weekly compensation previously paid and that the 
 
            past due, accrued amounts be paid to the claimant in a lump 
 
            sum together with interest pursuant to section 85.30 of The 
 
            Code computed from the date each weekly payment came due 
 
            until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1802; 1803
 
                           Filed July 17, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DAN PATTERSON, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 928979
 
                      :
 
            JCA EXPRESS, INC.,  :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE COS.,:
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1802
 
            Where claimant had worked part time as a farmer and part 
 
            time as a truck driver, it was held that the mere selling of 
 
            some grain and performing light farm chores during the 
 
            winter months did not constitute a return to work which 
 
            terminated a healing period.  Healing period was ended by 
 
            the doctor's statement of maximum improvement.
 
            
 
            1803
 
            Thirty-four-year-old former truck driver and current farmer 
 
            awarded 25 percent permanent partial disability based upon 
 
            medical restrictions which eliminated him from truck 
 
            driving.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MELINDA FRITZ,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 929055
 
            HARKERS, INC.,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------
 
                                          :
 
            MELINDA FRITZ,                :
 
                                          :
 
                 Claimant,                :       File No. 1010985
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            HARKERS, INC.,                :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Melinda Fritz against her former employer 
 
            Harkers, Inc.  File number 929055 deals with an admitted 
 
            back injury of September 8, 1989.  Claimant seeks 
 
            compensation for permanent partial disability and payment of 
 
            medical expenses.  File number 1010985 deals with a disputed 
 
            left shoulder injury of February 28, 1992.  Claimant seeks 
 
            compensation for healing period, permanent partial 
 
            disability and payment of medical expenses.  Claimant seeks 
 
            to be paid mileage for two trips to Iowa City, Iowa.  
 
            Claimant also seeks payment of expenses incurred in 
 
            obtaining an independent medical examination from Jay J. 
 
            Parsow, M.D., in the amount of $1430.
 
            
 
                 This case was heard at Sioux City, Iowa, on November 
 
            19, 1993.  The record consists of testimony from claimant; 
 
            Philip Reinders; joint exhibits 1 through 4, 6, 7, 9, 10 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            though 17, and 20 through 95; claimant's exhibits 96 through 
 
            100 and 102 through 107; and defendants' exhibit A.
 
            
 
                               FINDINGS OF FACT
 
            
 
                 Melinda Fritz is a 30-year-old woman who is a 1982 high 
 
            school graduate.  She characterized herself as an average 
 
            student.  She has no further formal education.  
 
            
 
                 Since leaving high school Melinda has worked as a cook 
 
            in the kitchen of a nursing home.  She sold shoes in the 
 
            Cherokee, Iowa K-Mart store.  There was an attempt to move 
 
            her into a management position but the promotion did not 
 
            work out for her and she left K-Mart.  Melinda worked as a 
 
            cook in the cafeteria of the Wilson Food plant.  In 
 
            September 1988 Melinda obtained employment with Harkers, 
 
            Inc.  She worked on a line packing meat into boxes.  She 
 
            worked on a three-person team in which one person assembled 
 
            boxes while the other two packed patties into the boxes, 
 
            weighed and then closed the boxes.  The members of the team 
 
            rotated positions every 15 minutes.  The work involved 
 
            repetitive activity at a relatively fast pace.  Part of the 
 
            time it was necessary to reach higher than shoulder level in 
 
            order to obtain the boxes when packing meat.  
 
            
 
                 Melinda's past medical history is relatively 
 
            unremarkable except for a few chiropractor visits in 1988.  
 
            (exhibit 15).  The records of that care indicate that 
 
            claimant's neck, left shoulder and upper back were the 
 
            principle sources of her complaints.  Exhibit 103 seems to 
 
            indicate that claimant was diagnosed with multiple sclerosis 
 
            in June or July 1990.  Despite a great amount of subsequent 
 
            medical care and treatment there is nothing in the record of 
 
            this case wherein any other physician suggests that she 
 
            might have multiple sclerosis.  Claimant denies ever being 
 
            told that she had multiple sclerosis.  This case has been 
 
            fully and extensively litigated, no doubt at great expense 
 
            to both parties.  It would be expected that if there truly 
 
            were a diagnosis of multiple sclerosis that it would have 
 
            been investigated thoroughly and the results of that 
 
            investigation entered into evidence.  Some of the symptoms 
 
            which claimant has described when seeing physicians would be 
 
            consistent with multiple sclerosis.  Nevertheless, a 
 
            diagnosis of that magnitude cannot be made by the 
 
            undersigned based upon the limited information found in 
 
            exhibit 103.  In view of the lack of a confirmed medical 
 
            diagnosis it cannot be found that Melinda is afflicted with 
 
            multiple sclerosis or that, even if she were, that it has 
 
            any impact on the outcome of this case.  In view of the many 
 
            physicians who have seen her, the absence of any suggestion 
 
            that multiple sclerosis is a possible source of her symptoms 
 
            is a strong indication that it is not.  It would be expected 
 
            that it would have been raised by at least one of them if it 
 
            were truly a potential source of her symptoms.
 
            
 
                 Melinda was injured on September 8, 1989, when 
 
            attempting to catch a tub of meat weighing approximately 75 
 
            pounds which slipped and was about to fall to the floor.  
 
            Since that time she has had extensive physical therapy and 
 
            care for her back.  She complains of continuing discomfort 
 
            and limitations regarding her back.  Claimant went through a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            course of conservative care.  She was off work for a time, 
 
            performed light duty work and was then placed back to full 
 
            duty.  She was off work for her back in the spring of 1990 
 
            and was sent to Iowa City, Iowa, for evaluation on two 
 
            occasions.  It is those two trips for which she seeks 
 
            mileage.  The transportation map of the state of Iowa 
 
            published by the Iowa Department of Transportation shows the 
 
            distance from Le Mars to Iowa City to be 303 miles each way.  
 
            It is noted that claimant's home at Alton appears to be an 
 
            equal distance from Iowa City.  Accordingly, claimant would 
 
            have traveled 1212 miles in attending those two 
 
            appointments.  The records of that evaluation, exhibits 27 
 
            through 30, show that claimant was treated for her back.  
 
            
 
                 Eventually, claimant resumed full duty at her 
 
            employment and performed all the requirements of her 
 
            employment until her left arm fracture.  While claimant 
 
            performed full duty work, she did so with pain.  Over her 
 
            course of care for her low back she received some relief 
 
            with exercise and therapy but the relief was only temporary.
 
            
 
                 It has been recommended by Anil K. Agarwal, M.D., that 
 
            she restrict her activities which affect the back.  He 
 
            opined that she has a 2 percent permanent impairment due to 
 
            her back injury.  (ex. 92).  
 
            
 
                 Jay Parsow, M.D., evaluated claimant on September 13, 
 
            1993, only weeks after she was seen by Dr. Agarwal.  Dr. 
 
            Parsow provided a considerably higher rating of impairment 
 
            and also recommended activity restrictions.  (ex. 93).
 
            
 
                 The primary treating physician for claimant's back 
 
            condition has been J. Michael Donohue, M.D., an orthopedic 
 
            surgeon who focuses his practice on spinal problems.  Dr. 
 
            Donohue has found no objective evidence of permanent 
 
            impairment but has recommended activity restrictions based 
 
            upon claimant's subjective complaints.  (ex. 13, pp. 11-12).
 
            
 
                 It is found that Melinda Fritz has no ratable permanent 
 
            impairment under the AMA Guides to the Evaluation of 
 
            Permanent Impairment.  It is also found that her back injury 
 
            did produce permanent symptoms which, in turn, have produced 
 
            a need for permanent activity restrictions in accord with 
 
            those recommended by Dr. Donohue.  She therefore has a 
 
            permanent injury and permanent disability affecting her low 
 
            back, despite the fact that the nature of the condition does 
 
            not result in a rating of impairment.
 
            
 
                 Melinda was able to perform her work at Harkers despite 
 
            her back condition.  It would be expected that her access to 
 
            employment would not be greatly affected by her back 
 
            although there is some loss of access.
 
            
 
                 On July 27, 1991, Melinda suffered a fracture of the 
 
            left proximal humerus of her left arm.  The fracture 
 
            occurred while she closing a window at her parents' home.  
 
            It occurred as a result of a tumor which had weakened the 
 
            bone.  Claimant was referred to Dr. Donohue who in turn 
 
            referred her to Michael H. McGuire, M.D., a physician who 
 
            has particular expertise in bone tumors.  (ex. 13, pp. 10, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            11 15, 16; ex. 36).  Dr. McGuire eventually performed a 
 
            graft in claimant's upper left arm which placed cadaver bone 
 
            into the portion of the humerus affected by the cyst.  (ex. 
 
            55).  After a period of recuperation, Dr. McGuire examined 
 
            claimant on November 15, 1991, and reported to Dr. Donohue 
 
            that her shoulder was free from pain and that she had a full 
 
            range of motion of the shoulder.  (ex. 51).  It should also 
 
            be noted that in that report that claimant mentioned 
 
            symptoms consistent with an ulnar nerve distribution problem 
 
            affecting her right hand.
 
            
 
                 Claimant resumed work.  The records of all her work 
 
            activities from the resumption of work in November 1991 
 
            until she left on February 28, 1992, are not in the record.  
 
            Records of her work activity from January 6, 1992 through 
 
            February 28, 1992, are in the record.  (ex. 107).  It is 
 
            noted that she performed a variety of packing functions.  It 
 
            also appears that there tended to be a greater amount of the 
 
            heavier boxes towards the end of the period.  
 
            
 
                 Commencing at approximately early February 1992 
 
            claimant developed a problem with her left shoulder.  The 
 
            problem progressed to the point that she left work on 
 
            February 28, 1992.  Her care was provided by Lynn A. Crosby, 
 
            M.D., an orthopedic surgeon who has a particular focus on 
 
            shoulder problems.  (ex. 14, pp. 4-5).  After diagnostic 
 
            testing and arthroscopic surgery Dr. Crosby determined that 
 
            claimant had inflammation of the biceps tendon in her 
 
            shoulder and impingement in her left shoulder.  He performed 
 
            surgery in which he decompressed the impingement of the 
 
            shoulder.  (ex. 60).  That surgery was performed on May 5, 
 
            1992.  After a relatively uneventful period of recuperation, 
 
            Dr. Crosby released claimant to resume part-time work 
 
            effective July 2, 1992.  She was to work part-time for three 
 
            weeks and resume full-time work.  (exs. 71 & 72).  The 
 
            employer would not make work available to the claimant.  She 
 
            was seen again by Dr. Crosby on July 29, 1992.  (exs. 73 & 
 
            75).
 
            
 
                 Claimant did not provide a statement from a physician 
 
            before the end of September 1992 in order to extend her 
 
            leave of absence with the employer.  Her employment was 
 
            terminated in early October 1992 (exs. 6, 7, & 9-12).  
 
            Claimant applied for and received unemployment compensation.  
 
            (ex. 96).  
 
            
 
                 There is a dispute between the physicians with regard 
 
            to whether or not the claimant's employment from November 
 
            1991 through February 1992 was a substantial factor in 
 
            producing the problems in claimant's left shoulder for which 
 
            she underwent the surgery performed by Dr. Crosby.  In 
 
            making this determination, great weight is given to the fact 
 
            that on November 15, 1991, claimant's shoulder was free from 
 
            pain and exhibited a full range of motion.  (ex. 51).  
 
            Considerable weight is also given to the fact that Dr. 
 
            Crosby's focus and high degree of expertise are shoulder 
 
            problems.  It is clearly superior to that of any of the 
 
            other physicians in the record in this case.  
 
            
 
                 According to Philip Reinders the rack upon which boxes 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            are set is 50 inches from the floor.  When a person removes 
 
            a box from the rack a person would typically grasp the top 
 
            of the side of the box closest to the person.  This would 
 
            place the hand a few inches higher than the top of the rack.  
 
            If the boxes were stacked as was indicated is not uncommon, 
 
            the height to which the person reached would be higher 
 
            still.  Simply stated, if the surface of the rack were 50 
 
            inches off the floor and boxes were eight inches high, the 
 
            person would be reaching 58 inches if boxes were not stacked 
 
            and 66 inches if they were stacked.  The record shows 
 
            claimant to be five feet eight inches tall.  For such a 
 
            person 58 inches would be at or above shoulder level and 
 
            would present some risk for causing impingement.  If the box 
 
            was more than eight inches high at the point at which it was 
 
            customarily grasped, the actual height to which the worker 
 
            reached would be higher than 58 to 66 inches.  
 
            
 
                 The fact that the employer will allow an employee to 
 
            use either arm to retrieve boxes or to use the dominant hand 
 
            when packing is of little significance.  Employees are 
 
            required to keep up with a production line and will use 
 
            whichever arm allows them to function most rapidly.  The 
 
            fact that risers were available does not mean that they were 
 
            used.  
 
            
 
                 Claimant's appearance and demeanor were observed when 
 
            she testified at hearing.  She appeared to be a very 
 
            credible and believable witness.  She did not seem to be a 
 
            whiner or complainer.  Her testimony that she frequently 
 
            reached overhead is certainly plausible and is found to be 
 
            correct. 
 
            
 
                 On this issue it should be noted the cause of the 
 
            shoulder impingement  could be completely a result of the 
 
            graft surgery or it could be a result of the work activity 
 
            being superimposed upon a shoulder which was more 
 
            susceptible to injury as a result of the graft surgery.  The 
 
            fact that the shoulder was symptom free when claimant 
 
            resumed work and did not become symptomatic until she had 
 
            been at work for a considerable amount of time tends to show 
 
            that it is more likely than not that the work activities 
 
            with the reaching above shoulder level played a part in 
 
            causing the impingement to develop.  It is found that the 
 
            development of the impingement syndrome in claimant's left 
 
            shoulder was an aggravation of a preexisting condition.  It 
 
            appears probable that the impingement would not have 
 
            developed if claimant had not been performing repetitive 
 
            work and reaching above shoulder level with her left arm.  
 
            The assessment of Dr. Crosby is accepted and is found to be 
 
            correct.  He has the highest level of expertise in shoulder 
 
            problems.
 
            
 
                 Drs. Parsow and Agarwal were both retained for purposes 
 
            of litigation.  Drs. Crosby and Donohue were treating 
 
            physicians.  Dr. Crosby treated the shoulder while Dr. 
 
            Donohue treated the back.  Both of the treating physicians 
 
            are found to be the most reliable as far as the parts of the 
 
            claimant's body that they actively treated.  Namely, the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            assessment of the shoulder made by Dr. Crosby is accepted as 
 
            being correct and the assessment of claimant's back made by 
 
            Dr. Donohue is accepted as being correct.
 
            
 
                 It is clear that Melinda has some disability affecting 
 
            her left shoulder.  The restrictions which have been 
 
            recommended, however, appear to be the type of restrictions 
 
            which would have been necessary in order to prevent the 
 
            impingement syndrome from developing in the first place.  It 
 
            is clear that claimant did perform the reaching above 
 
            shoulder level which has the propensity to cause the 
 
            condition to develop.  Impingement syndrome can have its 
 
            onset in a relatively short amount of time.  It does not 
 
            necessarily require months or years of repetitive activity.  
 
            The activities which claimant can currently perform with her 
 
            left shoulder without causing additional injury are probably 
 
            little different from what they would have been if she had 
 
            not sustained the impingement injury.  Her lack of range of 
 
            motion appears to be more related to lack of use than to any 
 
            inevitable result from her injury and the reparative 
 
            surgery.  
 
            
 
                 When Melinda sought to return to work under Dr. 
 
            Crosby's release the employer was not amenable.  Apparently 
 
            the employer has chosen to adopt a rule or policy which 
 
            requires full capacity for individuals attempting to return 
 
            to work from what it considers to be a nonoccupational 
 
            injury or illness.  Likewise, the employer for some reason 
 
            has chosen to adopt a requirement for an authorized leave of 
 
            absence in order to avoid termination of employment when it 
 
            considers the injury or illness to be nonoccupational.  The 
 
            undersigned is not aware of any law or statute which 
 
            requires an employer to have such policies.  It is clear 
 
            that if an employer refuses to allow an individual to return 
 
            to work due to physical restrictions that resulted from an 
 
            occupational injury and then terminates the worker's 
 
            employment on account of unathorized absence, the 
 
            termination of employment is proximately caused by the 
 
            injury.  It is a situation where the employer refuses to 
 
            make work available to the injured employee as a result of 
 
            the injury.  The leave of absence request procedure is only 
 
            a complication.  If the employee had not been injured there 
 
            would have been no reason for the employee to be off work.  
 
            The chain of causation is clear and direct between the 
 
            injury and termination of employment in this case.  
 
            According to the claimant's testimony, the employer had 
 
            positions in its work force which were compatible with her 
 
            disability.  Nothing appears in the record to explain why 
 
            positions of that nature could not have been made available 
 
            to the claimant in lieu of terminating her employment 
 
            status.  
 
            
 
                 Claimant has worked extensively at resuming employment.  
 
            Her success has been quite limited.  She was evaluated at 
 
            Hope Haven, Inc.  Unfortunately, she demonstrates some 
 
            weakness in the area of intellectual functioning.  This is 
 
            quite unfortunate for an individual whose physical capacity 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            has been diminished.  It greatly limits her access to jobs.  
 
            The two possible jobs of which she spoke at hearing are far 
 
            from comparable in pay, benefits and working conditions to 
 
            her job at Harkers.  The loss of her employment at Harkers 
 
            has had a large economic impact upon Melinda.  It is much 
 
            larger than the impact of her back injury.  
 
            
 
                 In preparing for this hearing claimant obtained an 
 
            independent medical examination under the provisions of 
 
            section 85.39 from Dr. Parsow.  His charges, as shown on 
 
            exhibit 97, are $1430.  The statement is not itemized.  
 
            There is no evidence that the charges have been paid.  There 
 
            is no other evidence in the record showing the amount 
 
            charged to be reasonable.  The undersigned is faced with 
 
            either denying the entire amount of the charges or with 
 
            assigning some reasonable amount under a quantum merit 
 
            basis.  It is clear that the services performed by Dr. 
 
            Parsow are not valueless.  Even though his assessment has 
 
            not been accepted in this case, it cannot be said that it 
 
            was totally worthless.  To deny any allowance or recovery 
 
            whatsoever would be unreasonable.  The amount of charges for 
 
            independent medical examinations is not an issue which is 
 
            frequently litigated in this agency.  A recent case, Wright 
 
            v. Bridgestone-Firestone, file number 1023144 (February 5, 
 
            1993) allowed a fee of $600 as being reasonable.  There was 
 
            evidence that a reasonable charge would have been in the 
 
            range of $350 to $400 for that examination.  It is noted 
 
            that in this case two injuries and two parts of the body are 
 
            involved.  It is found that a fee in the amount of $600 is 
 
            the smallest amount that the undersigned would consider to 
 
            be reasonable.  While the full amount charged may certainly 
 
            be reasonable, the burden of proof rests on the claimant.  
 
            
 
                    
 
            
 
            
 
            Page   9
 
            
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
                 Although there are two claims, the principles of law 
 
            controlling the claims are similar. 
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 In file number 929055 the only issue is the one of 
 
            permanent partial disability and its commencement date.  It 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            is clear that claimant's back was not symptom free.  She had 
 
            been in treatment shortly before her arm fractured.  
 
            Nevertheless, the restrictions from Dr. Donohue do not 
 
            appear to be particularly onerous.  It is determined that 
 
            claimant has a 10 percent permanent partial disability of 
 
            her back which resulted from the September 8, 1989 injury.  
 
            
 
                 Compensation for permanent partial disability is 
 
            payable commencing at the end of the healing period.  Teel 
 
            v. McCord, 394 N.W.2d 405 (Iowa 1986).  From the record it 
 
            appears that claimant resumed work on or about October 16, 
 
            1989.  Accordingly, the permanent partial disability 
 
            compensation is payable commencing at that time.  From 
 
            October 16, 1989 through March 5, 1990, is a span of 20 1/7 
 
            weeks.  It then appears that claimant's weekly compensation 
 
            for healing period was reinstituted on or about March 6, 
 
            1990, and that she was paid weekly benefits until on or 
 
            about June 2, 1990.  Accordingly, the permanent partial 
 
            disability compensation entitlement for the September 8, 
 
            1989 injury recommences effective June 3, 1990, and that the 
 
            remaining 29 6/7 weeks are payable commencing on June 3, 
 
            1990.  The fact that claimant was off work for a 
 
            nonoccupational condition during part those 29 6/7 weeks 
 
            does not eliminate or impair her entitlement to receive 
 
            permanent partial disability compensation for the earlier 
 
            work-related injury.  
 
            
 
                 In connection with her back injury, claimant traveled 
 
            1212 miles for receiving care the University of Iowa 
 
            Hospitals at Iowa City.  She has not been compensated for 
 
            that mileage and is entitled to recover $254.52 for her 
 
            transportation expenses under the provisions of section 
 
            85.27 and rule 343 IAC 8.1(2).  Defendants offered no 
 
            evidence that they have paid this mileage.  It is well 
 
            established that satisfaction of an obligation is a defense 
 
            for which the burden of proof is on the party who would 
 
            benefit from showing that the liability had been satisfied.  
 
            Electra Ad Sign v. Cedar Rapids Truck Center, 316 N.W.2d 
 
            876 (Iowa 1982); Glenn v. Keedy, 248 Iowa 216, 80 N.W.2d 509 
 
            (1957).
 
            
 
                 It has been found that the claimant's work activity 
 
            following the graft surgery was a substantial factor in 
 
            causing the impingement syndrome.  It is likely that the 
 
            graft surgery in some way predisposed claimant to develop 
 
            the impingement syndrome but the greater weight of the 
 
            evidence indicates that the shoulder was symptom free prior 
 
            to claimant engaging in the work.  It would be speculative 
 
            to somehow surmise the impingement would have developed if 
 
            claimant had not engaged in the repetitive work which 
 
            involved reaching above her shoulder level.  Claimant has 
 
            carried the burden of proof of showing that it is probable 
 
            that the work was a substantial factor in producing the 
 
            impingement syndrome injury.  Accordingly, she has proven 
 
            proximate cause.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Since defendants are liable for the shoulder injury in 
 
            the sense of the impingement syndrome they are likewise 
 
            liable for the expenses associated with the surgery 
 
            performed by Dr. Crosby and for payment of healing period 
 
            compensation associated with that surgery.  The medical 
 
            expenses as set forth in exhibits 98, 99, 100, 102, 103, 
 
            104, 105, and 106 are as follows:
 
            
 
                 St. Joseph Hospital                  $7,642.91
 
                 Anesthesia Services Medical Group       360.00
 
                 Hera Kinetics                         2,045.00
 
                 Sioux City Radiological Group, P.C      214.00
 
                 Floyd Valley Hospital                    26.50
 
                 Creighton University                    565.22
 
            
 
                                          Total      $10,853.63
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel, 394 N.W.2d 405.
 
            
 
                 Claimant's healing period for file number 1010985, the 
 
            shoulder injury, commences on the date of injury, February 
 
            28, 1992, and runs through July 29, 1992, when she was last 
 
            seen by Dr. Crosby.  It is noted that she was not released 
 
            to unrestricted work and did not return to work as a result 
 
            of the July 2, 1992 release.  July 29, 1992, is found to be 
 
            the date at which maximum medical improvement occurred.  
 
            This is a span of 21 6/7 weeks.  
 
            
 
                 With regard to the shoulder injury the evidence does 
 
            not show any restrictions upon claimant's activities which 
 
            would not have been prudent to follow in order to have 
 
            avoided the development of the impingement syndrome.  The 
 
            extent of functional permanent disability which has resulted 
 
            from the development of the impingement syndrome is quite 
 
            small in that regard.  Nevertheless, it was sufficiently 
 
            large for this employer to determine that it had no place 
 
            for Melinda Fritz in its work force.  There was no law which 
 
            required the employer to terminate her employment and it 
 
            could have placed her in its work force if it had chosen to 
 
            do so.  An employer's apparent determination that an 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            individual is too disable to have a place in its work force 
 
            is entitled to a great deal of credibility since it is 
 
            evidence that the degree of disability is considerable.  2 
 
            Larson Workmen's Compensation Law, 67.61.  An employer's 
 
            refusal to give any sort of work after a claimant suffers an 
 
            injury may justify an award of disability and, similarly, 
 
            the claimant's inability to find other suitable work after 
 
            making bona fide efforts may indicate that relief should be 
 
            granted.  McSpadden, 288 N.W.2d 181.  The claimant's failure 
 
            to request and obtain a doctor's statement for a leave of 
 
            absence does not break the chain of causation between the 
 
            injury and termination of employment.  In fact, since the 
 
            healing period was ended on July 29, 1992, there was no 
 
            basis for a doctor to issue another statement indicating 
 
            that she was disabled from work.  In fact, it likely would 
 
            have been improper and inaccurate for the doctor to have 
 
            done so.  There is no reason to believe that any release 
 
            issued subsequent to July 2, 1992, would have been any 
 
            different than the release of July 2, 1992.  Defendants 
 
            could have chosen to place claimant into a work hardening 
 
            program which would have provided essentially the same 
 
            exposure as claimant's work within the restrictions 
 
            recommended by Dr. Crosby.  For some unknown reason they 
 
            chose to terminate her employment.
 
            
 
                 Claimant has made a bona fide effort to resume 
 
            employment and in fact appeared about to enter into some 
 
            sort of employment at the time of the hearing.  It appears, 
 
            however, that her actual earnings will be only a small 
 
            fraction of what she earned with Harkers.  When all the 
 
            pertinent factors of industrial disability are considered, 
 
            it is determined that Melinda Fritz sustained a 30 percent 
 
            permanent partial disability as a result of her left 
 
            shoulder injury.  This entitles her to recover 150 weeks of 
 
            permanent partial disability compensation.  That 
 
            compensation is payable commencing July 30, 1992.  
 
            
 
                 Dr. Parsow's independent medical examination applies to 
 
            both files.  The $600 fee previously found to be reasonable 
 
            should be allocated one-half to each of the two files in 
 
            this case, namely, $300 to each.  As previously indicated, 
 
            there is some value to his services.  Agency expertise may 
 
            be relied upon to provide an indication of the range of fees 
 
            customarily charged for similar services.  Section 
 
            17A.14(5).  Despite the fact that claimant carries the 
 
            burden of proving the reasonableness of the amount charged, 
 
            it is clearly unreasonable to determine that an absence of 
 
            direct evidence on that issue requires a finding that these 
 
            services had no value whatsoever.  The more correct approach 
 
            is to allow an amount which would be within the lower range 
 
            of that commonly seen in other cases.  That amount is 
 
            determined to be $600 in this case.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that in file 929055 defendants 
 
            pay Melinda Fritz fifty (50) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of one 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            hundred seventy-eight and 65/100 dollars ($178.65) per week 
 
            with twenty and one-sevenths (20 1/7) weeks thereof payable 
 
            commencing October 16, 1989, and with the remaining 
 
            twenty-nine and six-sevenths (29 6/7) weeks thereof 
 
            commencing June 3, 1990.
 
            
 
                 It is further ordered that in file number 929055 
 
            defendants pay claimant two hundred fifty-four and 52/100 
 
            dollars ($254.52) for transportation expenses and three 
 
            hundred dollars ($300) towards the cost of her independent 
 
            medical examination.  
 
            
 
                 It is further ordered that in file number 1010985 
 
            defendants pay Melinda Fritz twenty-one and six-sevenths (21 
 
            6/7) weeks of compensation for healing period at the 
 
            stipulated rate of one hundred eighty-two and 96/100 dollars 
 
            ($182.96) per week payable commencing February 28, 1992.
 
            
 
                 It is further ordered that in file 1010985 that 
 
            defendants pay Melinda Fritz one hundred fifty (150) weeks 
 
            of compensation for permanent partial disability at the 
 
            stipulated rate of one hundred eighty-two and 96/100 dollars 
 
            ($182.96) per week payable commencing July 30, 1992.
 
            
 
     
 
            
 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            It is further ordered that in file number 1010985 defendants 
 
            pay claimant's medical expenses as follows:
 
            
 
                 St. Joseph Hospital                  $7,642.91
 
                 Anesthesia Services Medical Group       360.00
 
                 Hera Kinetics                         2,045.00
 
                 Sioux City Radiological Group, P.       214.00
 
                 Floyd Valley Hospital                    26.50
 
                 Creighton University                    565.22
 
            
 
                                          Total      $10,853.63
 
            
 
                 It is further ordered that in file number 1010985 
 
            defendants pay Melinda Fritz three hundred dollars ($300) 
 
            towards that cost of her independent medical examination.
 
            
 
                 It is further ordered that all amounts of weekly 
 
            compensation ordered in this decision which are accrued 
 
            shall be paid to claimant in a lump sum together with 
 
            interest pursuant to section 85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1
 
            
 
                 Signed and filed this __________ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Mr. Dennis McElwain
 
            Attorneys at Law
 
            632-40 Badgerow Bldg
 
            PO Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                          1803 1402.30 1402.20 1807 
 
                                          52206 2207 3700 2502
 
                                          Filed February 23, 1994
 
                                          Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MELINDA FRITZ, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 929055
 
            HARKERS, INC., 
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------
 
                                          
 
            MELINDA FRITZ,                
 
                                          
 
                 Claimant,                       File No. 1010985
 
                                          
 
            vs.                               A R B I T R A T I O N
 
                                                
 
            HARKERS, INC.,                       D E C I S I O N
 
                                           
 
                 Self-Insured,            
 
                 Employer,                      
 
                 Defendant.               
 
            ------------------------------------------------------------
 
            1803
 
            For back injury which produced no ratable permanent 
 
            impairment, but activity restrictions, claimant was awarded 
 
            10 percent permanent partial disability.  For a shoulder 
 
            impingement syndrome injury which produced little, if any, 
 
            in the way of permanent impairment, but which caused the 
 
            employer to terminate claimant's employment, despite the 
 
            fact that it appeared to have suitable work available in its 
 
            work force, claimant awarded 30 percent permanent partial 
 
            disability.  Failure to re-employ when an employer has the 
 
            ability to do so, held to be evidence of a high degree of 
 
            disability.  The employer's procedure of terminating the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employment due to the claimant's failure to obtain a leave 
 
            of absence was held to not break the chain of causation 
 
            between the injury and the termination of employment.  
 
            Defendants had refused to allow claimant to return to work 
 
            under the restrictions imposed by her physician.
 
            
 
            1402.20 1402.30
 
            Where the physicians were in disagreement and the fact that 
 
            the claimant was symptom free prior to performing the 
 
            allegedly offending work activities was combined with a high 
 
            level of shoulder expertise of her treating surgeon for the 
 
            shoulder condition was accepted as being the correct 
 
            assessment of the shoulder over that of the physician who 
 
            treated her back.  The orthopedic surgeon who treated her 
 
            back was accepted as being correct in assessing the back 
 
            condition.
 
            
 
            1807 2207
 
            It was held proper to pay permanent partial disability at a 
 
            time when the employee was off work for a separate 
 
            nonoccupational condition.  
 
            52206
 
            Claimant had a cyst in the humerus.  It was treated with a 
 
            graft.  When she returned to work following that graft 
 
            surgery she developed impingement syndrome.  It was held 
 
            that she had sustained an injury in the nature of an 
 
            aggravation with a preexisting condition caused by the cyst 
 
            and graft.  
 
            
 
            3700 2502 
 
            Independent medical examination charged $1430.  Claimant 
 
            allowed to recover $600 on a quantum merit theory pursuant 
 
            to 17A.14(5).  The record had no direct evidence regarding 
 
            the reasonableness of the charge.