BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
               
 
       DEANDRA SINK n/k/a DEANDRA 
 
       PATTERSON,   
 
                                        File Nos. 991761
 
          Claimant,                               930170
 
               
 
       vs.                            A R B I T R A T I O N
 
               
 
       ALDI, INC.,                       D E C I S I O N
 
               
 
          Employer, 
 
               
 
       and          
 
               
 
       KEMPER INSURANCE and  
 
       TRAVELERS INSURANCE,   
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
            This is a consolidated proceeding in arbitration brought by 
 
       Deandra Sink, claimant, against Aldi, Inc., employer, and Kemper 
 
       Insurance and Travelers Insurance, defendants, for workers' 
 
       compensation benefits as a result of alleged injuries on August 
 
       18, 1989 and July 12, 1991.  Kemper insured the first injury and 
 
       Travelers the second.  On April 18, 1995, a hearing was held on 
 
       claimant's petition and the matter was considered fully submitted 
 
       at the close of this hearing.
 
            
 
            Since the filing of the petition, claimant has married and 
 
       the caption shall be changed to reflect her new last name, 
 
       Patterson.
 
            
 
            The parties have submitted a hearing report of contested 
 
       issues and stipulations which was approved and accepted as a part 
 
       of the record of this case at the time of hearing.  The oral 
 
       testimony and written exhibits received during the hearing are 
 
       set forth in the hearing transcript.
 
            
 
            According to the hearing report, the parties have stipulated 
 
       to the following matters:
 
            
 
            1.  At the times alleged in the petitions, claimant received 
 
       injuries arising out of and in the course of employment with 
 
       Aldi.
 
            
 
            2.  Claimant is not seeking additional temporary total or 
 
       healing period benefits at this time. 
 
            
 
            3.  If permanent partial disability benefits are awarded for 
 
       the August 18, 1989 and July 12, 1991 injuries, they shall begin 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       as June 1, 1990 and August 13, 1992 respectively.
 
            
 
            4.  At the time of the August 18, 1989 injury, claimant was 
 
       married and entitled to four exemptions.  The parties dispute the 
 
       gross weekly earnings. 
 
            
 
            5.  At the time of the July 12, 1991 injury, claimant's 
 
       gross weekly earnings were $300.08; she was married; and, she was 
 
       entitled to four exemptions.  Therefore, claimant's weekly rate 
 
       of compensation is $206.15 according to the industrial 
 
       commissioner's published rate booklet for this injury. 
 
            
 
            6.  It was stipulated that the medical bills submitted by 
 
       claimant at the hearing are fair and reasonable and causally 
 
       connected to the medical condition upon which the claim herein is 
 
       based but that the issue of their causal connection to any work 
 
       injury remains an issue to be decided herein.
 
       
 
                                ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
       in this proceeding:
 
            
 
             I.  The extent of claimant's entitlement to disability 
 
       benefits; and,
 
            
 
            II.  The extent of claimant's entitlement to medical 
 
       benefits.
 
       
 
                            FINDINGS OF FACT
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
            
 
            A credibility finding is necessary to this decision as 
 
       defendants placed claimant's credibility at issue during cross- 
 
       examination as to the nature and extent of the injury and 
 
       disability.  From her demeanor while testifying, claimant is 
 
       found credible.
 
            
 
            Claimant, Deandra Patterson, worked for Aldi from 1986 until 
 
       November 1991 at which time she was fired because suitable work 
 
       was not available within her physician imposed work restrictions.  
 
       Deandra worked as a "selector" in an Aldi warehouse filing orders 
 
       from Aldi stores for grocery items warehoused at the facility.  
 
       Deandra would travel around the warehouse on an electric cart 
 
       placing the ordered items onto a pallet.  When the order was 
 
       filled, the pallet would be loaded onto trucks for shipment to 
 
       the store.  This work required repetitive lifting and carrying 
 
       cases of grocery items weighing from 5-65 pounds each.  Claimant 
 
       was required to load approximately 325 cases an hour prior to her 
 
       injury.
 
            
 
            The injury on August 18, 1989 involved the left shoulder.  
 
       Deandra stated that while lifting a case of six gallon jugs she 
 
       felt something pop and pain ensued.  As Deandra thought the 
 
       problem only temporary, she continued to work and did not seek 
 
       immediate medical attention. However, after two months Deandra 
 
       steadily grew worse and eventually she lost feeling in her hands 
 
       and arms.  Upon a diagnosis of infrascapular cervical chronic 
 
       strain, Deandra received treatment from John Baldwin, D.O., a 
 
       family practice physician, in the form of medication and physical 
 
       therapy.  Claimant suffered flareups of pain after activity at 
 
       home and work during this treatment but Dr. Baldwin felt all of 
 
       Deandra's shoulder problems were due to the August 1989 work 
 
       injury.
 

 
 
 
 
 
 
 
 
 
            
 
            Claimant remained off work extensively until the spring of 
 
       1990 when her care was changed to Robert Prentice, M.D., an 
 
       orthopedic surgeon.  Soon thereafter Dr. Prentice returned 
 
       claimant to work in a reduced capacity.  Deandra started 
 
       initially at 60 percent of the standard rate but her rate was 
 
       gradually increased to 80 percent.  At hearing Deandra estimated 
 
       that she achieved 90 percent of her rate by the time of her 
 
       second injury in 1991.  Dr. Prentice never formally increased the 
 
       restricted rate over 80 percent.  Dr. Prentice opines that 
 
       claimant suffered a 20 percent permanent loss of use of her left 
 
       upper extremity from the 1989 injury.  Despite viewing a video 
 
       surveillance tape of certain types of work activity at home in 
 
       June 1990, Dr. Prentice did not change his views as to the extent 
 
       of disability or his belief that claimant was an honest, credible 
 
       person.  It is clear that the injury, consisting of chronic 
 
       musculolegamentous strain of the soft tissue surrounding the 
 
       scapula, extends beyond the arm into the shoulder and the body as 
 
       a whole.  Therefore, it is found that the work injury of August 
 
       18, 1989 is a cause of a significant loss of use to the body as a 
 
       whole.
 
            
 
            During treatment for the left shoulder condition, claimant 
 
       complained of and was treated for low back pain by Dr. Baldwin.  
 
       Dr. Baldwin felt that this was related as well to the injury due 
 
       to overcompensation for the upper body injury.  Dr. Prentice 
 
       disagrees or at least states that he cannot causally relate the 
 
       low back condition to the shoulder injury within a reasonable 
 
       degree of medical certainty.  As Dr. Prentice is a specialist in 
 
       the field of orthopedics, his views must be given greater weight 
 
       than those of Dr. Baldwin.  Therefore, a causal connection of the 
 
       low back condition to a work injury could not be found.
 
            
 
            The injury on July 12, 1991 occurred to the right shoulder 
 
       when claimant reached overhead to prevent a case of groceries 
 
       from falling on her.  Deandra first was treated by Dr. Prentice 
 
       for this condition but soon thereafter the doctor felt that he 
 
       could offer her nothing further in treatment and suggested a 
 
       doctor closer to her residence.  Deandra then began treating with 
 
       M. H. Paul, D.O., who imposed light duty restrictions against 
 
       lifting and repetitive movements of the right shoulder.  Claimant 
 
       was terminated by Aldi in November 1991 for the reason that no 
 
       work was available at the warehouse within such restrictions.  
 
       Dr. Paul treated claimant over the next several months.  This 
 
       treatment remained initially conservative but eventually Dr. Paul 
 
       performed arthroscopic surgery in the right shoulder.  Despite 
 
       this surgery and extensive treatment by Dr. Paul, Deandra's right 
 
       shoulder symptoms have persisted.  In August 1991, using the AMA 
 
       Guides for rating impairments, Dr. Paul opined that claimant 
 
       suffered a three percent body as a whole permanent impairment due 
 
       to the right shoulder condition and concurs with a functional 
 
       capacity evaluation as descriptive of her limitations.  This 
 
       evaluation demonstrated various limitations such as a maximum 
 
       level lift of 35 pounds; standing lift of 35 pounds; overhead 
 
       lift of only 20 pounds; unilateral carrying of 20 pounds on the 
 
       left; pushing 51 pounds; and, pulling 69 pounds.  Based upon the 
 
       uncontroverted views of Dr. Paul, it is found that the work 
 
       injury of July 12, 1991 is a cause of a significant loss of use 
 
       to the body as a whole as demonstrated by the functional capacity 
 
       evaluation.
 
            
 
            Deandra testified that she had no prior or subsequent 
 
       injuries to the shoulders other than those at work herein.  There 
 
       is no evidence in the record to suggest otherwise.
 
            
 
            Deandra is 32 years of age.  She is a high school graduate 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       and has taken some post high school classes in accounting at a 
 
       local community college.  She has worked in light duty jobs such 
 
       as cashier at a food store; accounting work in a small produce 
 
       business she operated with her husband; and, an office job making 
 
       corrections to technical drawings.  She is capable of performing 
 
       this work today, although such work paid considerably less than 
 
       her wages at Aldi.
 
            
 
            With reference to loss of earning capacity just prior to the 
 
       1991 right shoulder injury, Deandra's medical condition was far 
 
       from excellent.  She had a clear functional impairment which did 
 
       not exist before the 1989 left shoulder injury.  However, despite 
 
       a restricted level of activity, claimant was able to continue 
 
       working in her selector job at Aldi without loss of pay or 
 
       benefits.
 
            
 
            After the 1991 right shoulder injury, Deandra's earning 
 
       capacity significantly changed.  She was no longer able to return 
 
       to her selector job at Aldi and she has not worked since.  
 
       Claimant's current restrictions due to the right shoulder 
 
       problems prevent a return to heavy manual labor jobs.  However, 
 
       as pointed out by Dr. Prentice, claimant is naturally restricted 
 
       from many such jobs due to her small physic.  These restrictions 
 
       do not prevent working in light duty jobs such as cashier or 
 
       bookkeeper which she has performed in the past.
 
            
 
            Despite referrals to various jobs by a vocational consultant 
 
       retained by defendants, claimant has remained unemployed.  
 
       However, much of this is due to lack of motivation.  At hearing 
 
       she stated that she gave up looking for work because the only 
 
       available work was at minimum wage which would not pay for her 
 
       baby sitting.  This may be true but clearly her current 
 
       unemployment is largely due to her life situation and not her 
 
       disability.
 
            
 
            However, even if she had minimum wage employment, she would 
 
       have suffered a major loss of earning capacity from the loss of 
 
       her job at Aldi.  That job paid in excess of $12 per hour at the 
 
       time of the termination and claimant had fringe benefits not 
 
       available to those in minimum wage employment.  Despite a wide 
 
       range of jobs available at Aldi, whether it be at the warehouse 
 
       or at their other locations, Aldi made no effort to accommodate 
 
       for Deandra's disability after the 1991 injury.  This is clear 
 
       evidence of a significant disability which must be compensated.
 
            
 
            Therefore, the work injury of August 18, 1989 is a cause of 
 
       a mild 10 percent loss of earning capacity.  The work injury of 
 
       July 12, 1991 is a cause of an additional 50 percent loss of 
 
       earning capacity.
 
            
 
            Medical benefits are disputed with reference to the 1989 
 
       injury.  As established by the hearing report and the record, 
 
       defendant Kemper has denied the causal connection of the 
 
       requested medical expenses to the work injury.  Frankly, the 
 
       undersigned cannot determine from the record what the requested 
 
       expenses involve and no testimony was offered with reference to 
 
       the requested bills.
 
            
 
            Defendant, Kemper, also claims that claimant was part-time 
 
       at the time of the first injury.  Claimant admitted at hearing 
 
       that her hours varied and that she worked 25-30 hours a week.  
 
       However, defendant Kemper did not offer any evidence that 
 
       claimant's earnings were less than the usual weekly earnings of a 
 
       regular full-time adult laborer in the line of industry in which 
 
       claimant was injured.  It is possible that such an arrangement 
 
       was full time for Aldi employment at least.
 

 
 
 
 
 
 
 
 
 
       
 
                           CONCLUSIONS OF LAW
 
            
 
             I.  The question of causal connection is essentially within 
 
       the domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
       Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
       experts need not be couched in definite, positive or unequivocal 
 
       language and the expert opinion may be accepted or rejected, in 
 
       whole or in part, by the trier of fact. Sondag v. Ferris 
 
       Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
       such an opinion is for the finder of fact to determine from the 
 
       completeness of the premise given the expert or other surrounding 
 
       circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
       867 (1965).
 
            
 
            Furthermore, if the available expert testimony is 
 
       insufficient alone to support a finding of causal connection, 
 
       such testimony may be coupled with non-expert testimony to show 
 
       causation and be sufficient to sustain an award.  Giere v. Aase 
 
       Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
       Such evidence does not, however, compel an award as a matter of 
 
       law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974).  
 
       To establish compensability, the injury need only be a 
 
       significant factor, not be the only factor causing the claimed 
 
       disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 
 
       354 (1980).  In the case of a preexisting condition, an employee 
 
       is not entitled to recover for the results of a preexisting 
 
       injury or disease but can recover for an aggravation thereof 
 
       which resulted in the disability found to exist.  Olson v. 
 
       Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
            As the claimant has shown that the work injury was a cause 
 
       of permanent physical impairment or limitation upon activity 
 
       involving the body as a whole, the degree of permanent disability 
 
       must be measured pursuant to Iowa Code section 85.34(2)(u).  
 
       However, unlike scheduled member disabilities, the degree of 
 
       disability under this provision is not measured solely by the 
 
       extent of a functional impairment or loss of use of a body 
 
       member.  A disability to the body as a whole or an "industrial 
 
       disability" is a loss of earning capacity resulting from the work 
 
       injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 
 
       N.W. 899 (1935).  A physical impairment or restriction on work 
 
       activity may or may not result in such a loss of earning 
 
       capacity.  Examination of several factors determines the extent 
 
       to which a work injury and a resulting medical condition caused 
 
       an industrial disability.  These factors include the employee's 
 
       medical condition prior to the injury, immediately after the 
 
       injury and presently; the situs of the injury, its severity and 
 
       the length of healing period; the work experience of the employee 
 
       prior to the injury, after the injury and potential for 
 
       rehabilitation; the employee's qualifications intellectually, 
 
       emotionally and physically; earnings prior and subsequent to the 
 
       injury; age; education; motivation; functional impairment as a 
 
       result of the injury; and inability because of the injury to 
 
       engage in employment for which the employee is fitted.  Loss of 
 
       earnings caused by a job transfer for reasons related to the 
 
       injury is also relevant.  See Peterson v. Truck Haven Cafe, Inc., 
 
       Vol. I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App. 
 
       February 28, 1985).
 
            
 
            A showing that claimant had no loss of his job or actual 
 
       earnings does not preclude a finding of industrial disability. 
 
       See Michael v. Harrison County, Thirty-fourth Biennial Rep., Iowa 
 
       Industrial Comm'r 218, 220 (App. 1979); Bearce v. FMC Corp., 465 
 
       N.W.2d 531 (Iowa 1991) only held that continued employment with 
 
       no loss of earnings is significant evidence that should not be 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       overlooked in measuring loss of earning capacity.  Loss of 
 
       potential employment is also a factor to consider in assessing 
 
       industrial disability.  Collier v. Sioux City Comm. Sch. Dist., 
 
       File No. 953453 (App. February 25, 1994).
 
            
 
            Furthermore, a refusal by an employer to reemploy the 
 
       injured worker is evidence of lack of employability.  Pierson v. 
 
       O'Bryan Brothers, File No. 951206 (App. January 22, 1995).  Meeks 
 
       v. Firestone Tire & Rubber Co., File No. 876894 (App. January 22, 
 
       1993).  See also Larson, Workmen's Compensation Law,  57.61, pp. 
 
       10-164.90-.95; Sunbeam Corp. v. Bates, 271 Ark 609 S.W.2d 102 
 
       (1980); Army & Air Force Exchange Service v. Neuman, 278 F. Supp 
 
       865 (W.D. La 1967); Leonardo v. Uncas Manufacturing Co., 77 R.I. 
 
       245, 75 A 2d 188 (1950).
 
            
 
            In the case sub judice, it was found that claimant suffered 
 
       a 10 percent loss of her earning capacity as a result of the 1989 
 
       work injury.  Such a finding entitles claimant to 50 weeks of 
 
       permanent partial disability benefits as a matter of law under 
 
       Iowa Code section 85.34(2)(u) which is 10 percent of 500 weeks, 
 
       the maximum allowable number of weeks for an injury to the body 
 
       as a whole in that subsection. 
 
            
 
            It was also found that claimant suffered an additional 50 
 
       percent loss of her earning capacity as a result of the 1991 work 
 
       injury.  Such a finding entitles claimant to 250 additonal weeks 
 
       of permanent partial disability benefits as a matter of law under 
 
       Iowa Code section 85.34(2)(u) which is 50 percent of 500 weeks, 
 
       the maximum allowable number of weeks for an injury to the body 
 
       as a whole in that subsection. 
 
            
 
            With reference to computing rate of weekly compensation for 
 
       the 1989 injury, the introductory paragraph of Iowa Code section 
 
       85.36 states as follows:
 
            
 
            Weekly earnings means gross salary, wages, or earnings 
 
            of an employee to which such employee would have been 
 
            entitled had the employee worked the customary hours 
 
            for the full pay period in which the employee was 
 
            injured, as regularly required by the employee's 
 
            employer for the work or employment for which the 
 
            employee was employed, . . .
 
            
 
            Thereafter, various subsections are contained in Iowa Code 
 
       section 85.36 which describe numerous alternative methods to 
 
       arrive at gross weekly earnings.  In the case at bar, many 
 
       subsections could apply.  As claimant customarily worked less 
 
       than 40 hours each week, the rate could be computed under Iowa 
 
       Code section 85.36(10) which annualizes income from all sources 
 
       for "so-called" part-time employees.  As claimant received her 
 
       check every two weeks, subparagraph two may apply which divides 
 
       by two the bi-weekly pay.  As claimant was paid on an hourly 
 
       basis, Iowa Code section 85.36(6) can be utilized which would 
 
       average the earnings over the last 13 representative weeks.
 
            
 
            The primary purpose of workers' compensation statute is to 
 
       benefit workers and worker's dependents and is to be interpreted 
 
       liberally with view toward that objective.  Caterpillar Tractor 
 
       Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  Consequently, given 
 
       the intent set forth in the introductory paragraph of Iowa Code 
 
       section 85.36, use of any method of computation which would not 
 
       result in a reasonable approximation of the worker's customary 
 
       earnings from employment would be contrary to the express intent 
 
       and the purposes of the statute.  The various subsections are not 
 
       a heirarcy of choices (the first one to apply is to be applied 
 
       first).  Likewise, use of a particular subsection is not dictated 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       by how or when a person is paid or how much he or she works in a 
 
       given week.  The subsections are only various alternatives which 
 
       may be utilized by this agency to arrive at customary earnings.  
 
       Thilges v. Snap-On Tools Corp., 528 N.W.2d 614 (Iowa 1995); 
 
       Hanigan v. Hedstrom Concrete Products, Inc., 524 N.W.2d 158 (Iowa 
 
       1994); Foster v. Plaza Restaurant and Lounge, (Arb. Filed 
 
       February 27, 1989); Greer v. Sartori Memorial Hospital, (Arb. 
 
       Filed May 19, 1989).
 
            
 
            Defendant Kemper argues for application of section 85.36(10) 
 
       to annualize claimant's income thereby greatly lowering the rate 
 
       for the 1989 injury.  As claimant had no other income that year, 
 
       the method would not arrive at a gross rate that would not be 
 
       customary for her or representative of her real wage earnings at 
 
       the time of injury.  As defendant Kemper stands to greatly 
 
       benefit from application of such a method, it bears the burden of 
 
       proof.  However, Kemper did not offer any evidence to show that 
 
       claimant's earnings were less than those having the same or 
 
       similar jobs at Aldi or elsewhere.  Consequently, the undersigned 
 
       rejects use of such a method to arrive at claimant's rate.
 
            
 
            The best method to arrive at a rate that would represent 
 
       weekly earnings had Deandra worked the customary hours during the 
 
       week of the injury as mandated by the first sentence of section 
 
       85.34 and applicable case law, is to use the 13 week average 
 
       earnings for the 1989 injury.  According to the hearing report, 
 
       the parties agreed that this amount is $286.47 resulting in a 
 
       rate of compensation in the amount of $196.54 per week.
 
            
 
            II.  According to the hearing report, defendant Kemper 
 
       asserts that claimant is not entitled to reimbursement for 
 
       certain medical expenses under Iowa Code section 85.27 which 
 
       provides employers with the right to chose the care.  They also 
 
       deny the causal connection of these expenses to the work injury.  
 
       This agency has held that it is inconsistent to deny liability 
 
       and the obligation to furnish care on one hand and at the same 
 
       time claim a right to choose the care.  Kindhart v. Fort Des 
 
       Moines Hotel, I Iowa Industrial Comm'r Decisions No. 3, 611 (App. 
 
       1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Comm'r 
 
       Report 16 (App. 1981).  Therefore, defendant had no right to 
 
       choose the care.
 
            
 
            However, from the evidence presented, little could be found 
 
       as to the causal connection of these expenses to the injury.  
 
       Consequently, no specific findings will be made as to these 
 
       expenses.  However, reimbursement will be ordered for those 
 
       expenses that are related to those medical conditions found work 
 
       related in this decision.
 
       
 
                                 ORDER
 
            
 
            1.  Defendant, Kemper, shall pay to claimant fifty (50) 
 
       weeks of permanent partial disability benefits at a rate of one 
 
       hundred ninety-six and 54/l00 dollars ($196.54) per week from 
 
       June 1, 1990.
 
            
 
            2.  Defendant, Travelers, shall pay to claimant two hundred 
 
       fifty (250) weeks of permanent partial disability benefits at a 
 
       rate of two hundred six and 15/l00 dollars ($206.15) per week 
 
       from August 13, 1992.
 
            
 
            3.  Defendant, Kemper, shall pay those portions of medical 
 
       expenses listed in the prehearing report that are related to 
 
       medical conditions found work related herein.
 
            
 
            4.  Both defendants shall pay accrued weekly benefits in a 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       lump sum and shall receive credit against this award for all 
 
       benefits previously paid.
 
            
 
            5.  Both defendants shall pay interest on weekly benefits 
 
       awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            6.  Defendant, Kemper and Travelers, shall equally pay the 
 
       costs of this action pursuant to rule 343 IAC 4.33, including 
 
       reimbursement to claimant for any filing fees paid in this 
 
       matter.
 
            
 
            7.  Both defendants shall file activity reports on the 
 
       payment of this award as requested by this agency pursuant to 
 
       rule 343 IAC 3.1.
 
       
 
       
 
       
 
          Signed and filed this ____ day of June, 1995.
 
       
 
       
 
       
 
       
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
       Copies To:
 
       
 
       Mr. William Bauer
 
       Attorney at Law
 
       100 Valley St
 
       Box 517
 
       Burlington  IA  52601
 
       
 
       Mr. Harry W. Dahl
 
       Attorney at Law
 
       974 73rd St  STE 16
 
       Des Moines  IA  50312
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed June 2, 1995
 
                                             LARRY P. WALSHIRE
 
       
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
               
 
       DEANDRA SINK n/k/a DEANDRA 
 
       PATTERSON,   
 
                                            File Nos. 991761
 
          Claimant,                                   930170
 
               
 
       vs.                                A R B I T R A T I O N
 
               
 
       ALDI, INC.,                          D E C I S I O N
 
               
 
          Employer, 
 
               
 
       and          
 
               
 
       KEMPER INSURANCE,     
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ________________________________________________________________
 
       
 
       
 
       5-1803
 
       Nonprecedential, extent of disability case.
 
               
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JANET SHATSWELL,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 930291
 
         CITY OF ONAWA, IOWA,          :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the April 11, 1990 
 
         petition of claimant, Janet Shatswell, surviving spouse of dece
 
         dent Cole B. Shatswell, Jr., who died on October 22, 1989, as a 
 
         result of severe occlusive two vessel coronary atherosclerosis 
 
         with an organized thrombus in the right coronary artery with 
 
         fatal ventricular arrhythmias allegedly caused or aggravated by 
 
         his employment as a police officer with the City of Onawa, Iowa.
 
         
 
              This case came on for hearing before the undersigned deputy 
 
         industrial commissioner on June 26, 1991, in Council Bluffs, 
 
         Iowa.  The record was considered fully submitted at the close of 
 
         the hearing.  The record in this case consists of joint exhibits 
 
         1-27; and testimony of Jane Shatswell and Larry Taylor.  Numerous 
 
         other witnesses, including many highly qualified physicians, tes
 
         tified by deposition.
 
         
 
                                      issues
 
         
 
              The parties have stipulated that an employer/employee rela
 
         tionship existed between Cole B. Shatswell, Jr. (hereinafter 
 
         referred to as "decedent") and defendant employer at the time of 
 
         his death, and that the appropriate rate of weekly benefits is 
 
         $298.89.
 
         
 
              The issues presented for resolution include:
 
         
 
              1.  Whether decedent's death resulted from an injury arising 
 
         out of and in the course of his employment with the City of 
 
         Onawa, Iowa; and,
 
         
 
              2.  Whether claimant is entitled to burial benefits.
 
         
 
                                 findings of fact
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              The undersigned has carefully considered all the testimony 
 
         given at the hearing, arguments made, evidence contained in the 
 
         exhibits herein, and makes the following findings:
 
         
 
              On and before October 22, 1989, decedent was the Chief of 
 
         Police for the City of Onawa, Iowa.  October 22, 1989 was a 
 
         Sunday and Officer Shatswell was working that day.  About 11:15 
 
         a.m. he went home to have lunch with his wife, Janet.  About 
 
         11:30 a.m. he received a telephone call stating that the store 
 
         security officer at the Medicine Chest had detained one 
 
         shoplifter and was in the process of detaining a second 
 
         shoplifter and the assistance of the city police was needed.  
 
         Officer Shatswell left home and drove directly to the Medicine 
 
         Chest Pharmacy.
 
         
 
              When Officer Shatswell arrived, Kim Coonrod, the store secu
 
         rity officer, was near the front of the Medicine Chest store in 
 
         the process of detaining a shoplifter, Joan Darling.  Earlier, 
 
         Coonrod had observed Darling removing items of merchandise from 
 
         the store and putting them in her purse.  She left the store 
 
         without paying for the items.  Upon arriving at the scene, Mrs. 
 
         Darling was bent over the passenger front seat of her car and, 
 
         according to Coonrod, was taking the items out of her purse and 
 
         stuffing them under the front seat of her car (Exhibit 16, pages 
 
         11 and 12).
 
         
 
              Officer Shatswell then asked Mrs. Darling to quit removing 
 
         the stolen items from her purse and get out of the vehicle.  She 
 
         refused.  Officer Shatswell was then required to grab Mrs. 
 
         Darling by the shoulders and physically pull her out of the 
 
         vehicle (Ex. 16, p. 12, lines 6-16).  Kim Coonrod then went into 
 
         the vehicle to retrieve the stolen merchandise and did not see 
 
         Officer Shatswell and Mrs. Darling for the next few moments (Ex. 
 
         16, p. 20, ll. 19-23).
 
         
 
              There was another eyewitness at the scene.  Mr. Johnny 
 
         Stevens was sitting in his pickup truck observing the arrest.  In 
 
         his deposition Johnny Stevens stated that after Officer Shatswell 
 
         removed Mrs. Darling from her vehicle:
 
         
 
              So, he -- he helped her toward the curb again and she 
 
              was kind of throwin' her arms back toward him, you 
 
              know, kind of pushin' away and struck him across the --  
 
              chest and then she got up on the curb.  Well, he -- I 
 
              noticed then that he didn't look right.  He kind of 
 
              slowed down and he turned around and went toward the 
 
              car again to get back inside the car, he stuck his head 
 
              in a little ways and then he came back out and he 
 
              turned around and leaned back toward the backside of 
 
              their car and I noticed his hands were shakin' real bad 
 
              and I couldn't really see his face expressions, cause 
 
              he had sunglasses on, but I knew somethin' was wrong 
 
              then, so I watched him and the shaking got a little 
 
              worse and then he crossed his arms acrossed his chest 
 
              and he kind of turned and went down on his chest.
 
         
 
         (Ex. 15, p. 9, ll. 6-21)
 
         
 
              All attempts to revive Officer Shatswell were unsuccessful 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         and he was pronounced dead at 12:31 p.m.
 
         
 
              The autopsy report of G. N. Herbeck, M.D., is contained in 
 
         the record as joint exhibit 3.  In the summary portion of the 
 
         report Dr. Herbeck states:
 
         
 
              The death in this 37-year-old Caucasian male is 
 
              attributed to severe occlusive two vessel coronary 
 
              arteriosclerosis with an organized thrombus in the 
 
              right coronary artery.  This most likely resulted in a 
 
              fatal arrhythmia in an already compromised heart 
 
              showing evidence of a recent (2-3 weeks) myocardial 
 
              infarction, biventricular hypertrophy, and congestive 
 
              heart failure.
 
         
 
              The claimant's expert cardiologist, Ward Chambers, M.D., in 
 
         his deposition stated:  "My opinion is that Mr. Shatswell suf
 
         fered sudden death from a malignant ventricular arrhythmia pre
 
         cipitated by his altercation with the lady involved in the case."  
 
         (Ex. 17, p. 5, ll. 14-17).
 
         
 
              When asked for the basis for his opinion, Dr. Chambers 
 
         stated:
 
         
 
              Q. All right.  What about those facts, can you be more 
 
                 specific, as to the specific facts which led you to 
 
                 conclude that must have been the precipitating 
 
                 event?
 
         
 
              A. The deceased was involved in altercation, both 
 
                 verbal and physical, with the alleged shoplifter 
 
                 that involved pushing, shoving, hitting, over a few 
 
                 minute period of time.
 
         
 
              Q. Are you aware of the relative size differences 
 
                 between the two parties?
 
         
 
              A. Yes, sir.
 
         
 
              Q. Did you see this as being like a fight that was 
 
                 going on between the two of them?
 
         
 
              A. The physical differences are irrelevant.  The physi
 
                 cal abuse the patient suffered, I think, had nothing 
 
                 to do with the arrhythmia.
 
         
 
              Q. All right.  What did, if the physical abuse didn't 
 
                 have anything to do with it, what caused it, if you 
 
                 will?
 
         
 
              A. It would be the emotional component of the argument.
 
         
 
              Q. All right.  And can you be more specific as to what 
 
                 you mean by the emotional component?
 
         
 
              A. Certainly.  If one is a police officer and involved 
 
                 in any sort of physical exchange that involved 
 
                 pulling a patient out of a car, having the patient 
 
                 go back in abusive type language, physical actions 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
                 against yourself, that will evoke a rather strong 
 
                 physiologic response, whether the patient is touched 
 
                 or not.  It's well-known in the cardiology litera
 
                 ture that emotional stress produces physiologically 
 
                 two important changes.  One would be the production 
 
                 or release of epinephrine from the adrenal glands 
 
                 and the other would be sympathetic nervous system 
 
                 discharges that affect the heart.  Both of these are 
 
                 known to precipitate ventricular arrhythmias and 
 
                 cause adverse physiologic changes in the heart.  
 
                 This is commonly noted by physicians that, in fact, 
 
                 cardiovascular symptoms many times are precipitated 
 
                 more easily by stress than physical exertion.
 
         
 
         
 
              (Ex. 17, p. 6, l. 1 - p. 7, l. 15)
 
         
 
              Dr. Herbeck, who did the autopsy, agreed with Dr. Chambers 
 
         (Ex. 13).
 
         
 
              Mr. Shatswell's primary treating physician, Curtis A. Mock, 
 
         M.D., also agreed with Dr. Chambers that the fight was the cause 
 
         of Mr. Shatswell's fatal arrhythmia (Ex. 18, pp. 32 & 33).
 
         
 
              The defendants' expert cardiologist, Ronald A. Draur, M. D., 
 
         in his deposition states that decedent died of a malignant ven
 
         tricular arrhythmia caused by coronary artery disease and a 
 
         recent subendocardial myocardial infarction (Ex. 19, p. 8, ll. 9-
 
         18).  Based on the deposition of Johnny Stevens, Dr. Draur 
 
         concluded that the confrontation between decedent and shoplifter 
 
         was not so stressful as to precipitate the fatal ventricular 
 
         arrhythmia (Ex. 19, p. 11, ll. 2-15).
 
         
 
              Decedent was survived by his wife Janet and three minor 
 
         children, Troy R. Shatswell born June 2, 1974; Bryan C. Shatswell 
 
         born November 8, 1976; and Cole B. Shatswell, III, born May 2, 
 
         1983.  Mrs. Shatswell described decedent as a gentle, caring, fun 
 
         loving individual who was devoted to his family.  Trooper Larry 
 
         M. Taylor described decedent in the same way.  Mr. Taylor, a 17 
 
         year veteran with the Iowa State Patrol, testified that the 
 
         job-related stress of a police officer is greater than the 
 
         normal, non-employment stress encountered in daily life.
 
         
 
                                conclusions of law
 
         
 
              Decedent's coronary artery disease and subendocardial 
 
         myocardial infarction preexisted his fatal malignant ventricular 
 
         arrhythmia.  Individuals with preexisting heart conditions have 
 
         been permitted recovery in cases where the work either required 
 
         heavy exertion which, superimposed on an already defective heart, 
 
         aggravates or accelerates the condition, or where unusually 
 
         strenuous employment exertion results in a heart injury.  Sondag 
 
         v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  There must be a 
 
         direct causal connection between the employment exertion and the 
 
         resulting injury before compensation is appropriate.  Littell v. 
 
         Lagomarcino Grupe Co., 235 Iowa 523, 17 N.W.2d 120 (1945).  It is 
 
         claimant's burden to establish by a preponderance of the evidence 
 
         that decedent's injury arose out of and in the course of his 
 
         employment, Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         (1965), and that a mere possibility of such is insufficient; 
 
         rather, a probability is necessary.  Burt v. John Deere Waterloo 
 
         Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).
 
         
 
              The record clearly indicates that decedent had a preexisting 
 
         heart condition.  The autopsy report of Dr. Herbeck indicated 
 
         that decedent had severe occlusive two vessel coronary 
 
         atherosclerosis with an organized thrombus in the right coronary 
 
         artery.  There was evidence of a myocardial infarction (2-3 
 
         weeks), biventricular hypertrophy and congestive heart failure.
 
         
 
              Notwithstanding the existence of this heart disease, Dr. 
 
         Chambers opined, and Drs. Herbeck and Mock agreed, that the 
 
         atherosclerosis and the organized thrombosis were not the cause 
 
         of the fatal arrhythmia that killed decedent.  All three doctors 
 
         agree that the fatal arrhythmia was caused by the confrontation 
 
         and struggle which occurred at the time he was arresting the 
 
         elderly shoplifters.
 
         
 
              Mr. Shatswell's sudden death occurred in the context of an 
 
         intensely emotional and stressful situation of an arrest.  Dr. 
 
         Chambers, a highly qualified cardiologist opined that a stressful 
 
         event can precipitate ventricular arrhythmias and cause severe 
 
         physiologic changes in the heart.  Dr. Draur agreed:
 
         
 
              Q  Isn't it recognized in cardiology that stress can 
 
                 precipitate or trigger or cause a fatal ventricular 
 
                 arrhythmia?
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
              A  Yes, it is.
 
         
 
              Q  Would that not be particular true in the case of an 
 
                 individual with an underlying coronary artery 
 
                 disease?
 
         
 
              A  Certainly.
 
         
 
         (Depo. Ex. 19, p. 10, ll. 7-14)
 
         
 
              Substantial medical evidence in this case indicates that the 
 
         cause of claimant's "sudden death" was a fatal arrhythmia.  
 
         According to Dr. Mock, arrhythmias can be caused by a blow to the 
 
         chest, stress, anxiety or any irritant that increases epinephrine 
 
         making the heart more irritable.  It was his opinion that an 
 
         event occurred that was "out of the ordinary for him to cause the 
 
         heart to fibrillate" (Ex. 18, pp. 32-33).
 
         
 
              Dr. Chambers testified that:
 
         
 
              Q. Well, but you've indicated that emotional stress is 
 
                 commonly known to cause an arrhythmia, right?
 
         
 
              A. Can certainly precipitate arrhythmias, as a general 
 
                 rule.
 
         
 
              Q. And you indicate that with a -- you need to know a 
 
                 particular individual's -- I guess something about 
 
                 them to know how stress is going to affect them, 
 
                 don't you?
 
         
 
              A. Yes, sir.
 
         
 
              Q. In other words, some events may affect one person 
 
                 more than another as far as emotional stress, right?
 
         
 
              A. Yes, sir.
 
         
 
              Q. And do you know some facts which would indicate that 
 
                 this was a particularly stressful situation for Mr. 
 
                 Shatswell, other than we do know, obviously, that he 
 
                 did have a cardiac arrest, but just do you know 
 
                 other facts besides that which would indicate he was 
 
                 stressed by the situation?
 
         
 
              A. The fact that he was involved in a physical con
 
                 frontation, despite the size difference, one never 
 
                 knows whether weapons are going to be involved.  I 
 
                 can imagine a number of things that would make that 
 
                 situation much more stressful than anything one 
 
                 would normally encounter in daily life, particularly 
 
                 when, I believe, -- the person he was involved with 
 
                 had a spouse that was also present.
 
         
 
         (Ex. 17, p. 8, l. 25 - p. 9, ll. 1-25)
 
         
 
              The question to be resolved in this case is whether decedent 
 
         encountered greater stress in performing his work activity on 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         October 22, 1989, than he would have experienced in his normal, 
 
         nonemployment life.  It is difficult to imagine any type of 
 
         nonemployment activity comparable to work as a law enforcement 
 
         officer.  On October 22, 1989, decedent was called to the scene 
 
         of a shoplifting crime at Keystone Medicine Chest store.  The 
 
         perpetrators were an elderly couple.  Kim Coonrod, a thief inves
 
         tigator for Keystone, was at the scene of the crime when decedent 
 
         arrived.  He testified in his deposition that the female perpe
 
         trator resisted orders from decedent in relinquishing the stolen 
 
         property.  Mr. Coonrod testified that decedent had to pull her 
 
         away and out of her vehicle by grabbing her at the shoulders.  
 
         Her husband sat in the front sit of the car during this encounter 
 
         and appeared fairly passive (Ex. 16, pp. 12-27).  Mr. Johnny 
 
         Stevens, another eye witness to the incident, testified in his 
 
         deposition that when decedent was guiding the same female perpe
 
         trator toward the curb, she struck him in the chest (Ex. 15).
 
         
 
              As Chief of Police, decedent was infrequently involved in 
 
         arrest situations and was involved primarily in administrative 
 
         and public relations duties.  Although he was an experienced 
 
         police officer, and not easily intimidated, the circumstances 
 
         surrounding the incident on October 22, 1989, were not the usual, 
 
         run-of-the-mill warrant arrest.  Decedent found himself in a con
 
         frontational situation with a 62-year-old female shoplifter who 
 
         was accompanied by a male companion, neither of whom were famil
 
         iar to decedent as both were from out-of-state.  Decedent had to 
 
         forcefully pull the shoplifter from her vehicle and confront her 
 
         regarding relinquishment of the stolen property.  Ordinarily, 
 
         this may appear as a routine arrest situation.  However, it 
 
         proved to be a traumatic event that was out of the ordinary suf
 
         ficient to cause an erratic heart beat and fatal arrhythmia which 
 
         resulted in decedent's death.
 
         
 
              After considering all of the above factors, the undersigned 
 
         concludes that decedent sustained an injury arising out of and in 
 
         the course of employment with employer on October 22, 1989 and 
 
         his employment substantially caused his death.  Claimant sus
 
         tained her burden of proof by a preponderance of the evidence 
 
         that decedent's preexisting heart condition was aggravated by his 
 
         employment.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Claimant sustained her burden of proof by a preponderance of 
 
         the evidence that decedent's death was caused by work-related 
 
         stress.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965); and Lindahl v. L. O. Boggs Co., 236 Iowa 296, 18 N.W.2d 
 
         607 (1945).
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Pursuant to Iowa Code section 85.31, defendants shall pay to 
 
         claimant, Janet Shatswell, surviving spouse of Cole B. Shatswell, 
 
         Jr., death benefits at the stipulated rate of two hundred 
 
         ninety-eight and 89/l00 dollars ($298.89).
 
         
 
              Pursuant to Iowa Code section 85.65, defendants shall pay to 
 
         the Treasurer of the State of Iowa the appropriate amount for the 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         benefit of the Second Injury Fund of Iowa.
 
         
 
              Pursuant to Iowa Code section 85.28, defendants shall pay 
 
         burial expenses.
 
         
 
              All accrued benefits shall be paid in a lump sum together 
 
         with statutory interest thereon pursuant to Iowa Code section 
 
         85.30.
 
         
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of July, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacob John Peters
 
         Attorney at Law
 
         233 Pearl St
 
         P O Box 1078
 
         Council Bluffs  IA  51502
 
         
 
         Mr. Gregory G. Barntsen
 
         Attorney at Law
 
         P O Box 249
 
         Council Bluffs  IA  51502
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                        5-1108.10; 5-1805
 
                        July 12, 1991
 
                        JEAN M. INGRASSIA
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JANET SHATSWELL,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 930291
 
         CITY OF ONAWA, IOWA,          :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         5-1108.10; 5-1805
 
         This claim for death benefits was brought by decedent's surviving 
 
         spouse.
 
         Decedent, Chief of Police, City of Onawa, Iowa, had a fatal 
 
         arrhythmia during the course of arresting two elderly 
 
         shoplifters.
 
         Decedent had a preexisting heart condition and a recent 
 
         subendocardial myocardial infarction.
 
         Three physicians attributed claimant's sudden death from a 
 
         malignant ventricular arrhythmia to the confrontation and 
 
         struggle which occurred at the time he was arresting the elderly 
 
         shoplifters.
 
         Defendants' expert cardiologist stated that the confrontation 
 
         between decedent and shoplifters was not so stressful as to 
 
         precipitate the fatal ventricular arrhythmia.
 
         Claimant met her burden that decedent's heart condition was 
 
         aggravated by his employment and the death was caused by 
 
         work-related stress which is greater than he would have 
 
         experienced in his normal, nonemployment life.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN SCOTT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  930373
 
            PITNEY BOWES,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Susan 
 
            Scott as a result of injuries to her low back which occurred 
 
            on August 15, 1989.  Defendants denied compensability for 
 
            the injury, paid weekly benefits and paid some medical 
 
            benefits through its group health plan.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on April 16, 1991.  The record in the proceeding 
 
            consists of claimant's exhibits 1 through 7, defendants' 
 
            exhibit 5 and testimony from claimant.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on August 15, 
 
            1989, arising of out and in the course of employment;
 
            
 
                 2.  Casual connection to temporary total disability or 
 
            healing period beginning August 18, 1989 through February 
 
            11, 1990;
 
            
 
                 3.  Causal connection to permanent disability and the 
 
            extent of disability under Iowa Code section 85.34(2)(u); 
 
            and 
 
            
 
                 4.  Claimant's entitlement to Iowa code section 85.27 
 
            medical benefits.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant, Susan Scott, began working for employer 
 
            Pitney Bowes on December 1, 1988, as a sales representative.  
 
            In that capacity she called on clients to sell office 
 
            equipment.  Her duties consisted of sales, set up, 
 
            demonstration and removal of office equipment.
 
            
 
                 On August 12 and 13, 1989, claimant moved to a new 
 
            residence with the assistance of a number of friends.  While 
 
            moving her personal belonging she sustained an injury to her 
 
            low back which is best described as a backache.  This injury 
 
            was not related to her employment.
 
            
 
                 On August 15, 1989, while performing duties for 
 
            employer, claimant sustained an aggravation of her low back 
 
            condition.  On that date claimant was removing a mailing 
 
            machine from a client's premises.  The machine weighed about 
 
            38 pounds.  Claimant carried the machine up a flight of 
 
            stairs and out to her car.  During the process claimant felt 
 
            a very sharp burning pain start in her low back and radiate 
 
            into her left leg.  At the time of injury claimant was five 
 
            feet and one inch tall and her body weight was 88 to 90 
 
            pounds.
 
            
 
                 Claimant went off work on August 18, 1989, due to the 
 
            severe back pain.  She was initially treated by Mark D. 
 
            Kelly, D.O., who recorded a history of backache occurring 
 
            while moving furniture at home (claimant's exhibit 2, page 
 
            1).  Defendants contend that the history taken by Kelly is 
 
            in conflict with claimant's allegation of a work injury.  It 
 
            is found that based upon the evidence presented, claimant's 
 
            history is not so conflicting that it causes her case to 
 
            fail.  No evidence was offered which refuted claimant's body 
 
            weight as 90 pounds on August 15, 1989.  No evidence was 
 
            offered to refute that claimant carried a 38 pound machine 
 
            out of a basement on August 15, 1989.  Furthermore, Dr. 
 
            Kelly's office notes of August 17, 1989, indicate a sharp 
 
            pain which began "in last couple days."  This statement 
 
            coincides with the date of injury (cl. ex. 2, p. 1).  
 
            
 
                 Claimant was off work between August 18, 1989 and 
 
            February 11, 1990, due to the low back pain.  She was 
 
            examined and treated by numerous doctors who differed in 
 
            their diagnosis of her back pain.  The initial treating 
 
            doctor, diagnosed her low back problem as lumbosacral strain 
 
            (cl. ex. 2, p. 5).
 
            
 
                 William R. Boulden, M.D., is an orthopedic specialist 
 
            who also acted as a treating physician.  He diagnosed 
 
            claimant's injury as sacroiliac joint dysfunction (cl. ex. 
 
            1, p. 4). 
 
            
 
                 Jeffrey M. Farber, D.O., saw claimant in consultation 
 
            with Dr. Kelly.  Farber assessed her problem as left 
 
            sacroilitis (cl. ex. 3, p. 1).
 
            
 
                 Ronald K. Bunten, M.D., also examined claimant and came 
 
            to the opinion that claimant likely aggravated some 
 
            preexisting asymptomatic degenerative disc disease in the 
 
            back (cl. ex. 4, p. 1).  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Finally, Peter D. Wirtz, M.D., examined claimant at the 
 
            request of defendants and diagnosed her back condition as 
 
            muscular pain and bulging disc L5-S1.
 
            
 
                 The fact that the doctors disagree on the diagnosis 
 
            does not cause the claim to fail.  It is obvious from the 
 
            reports that claimant was suffering from low back pain 
 
            during the period of recovery.  The severe pain began on 
 
            August 15, 1989, while carrying office equipment for 
 
            employer and the medical treatment during the period of 
 
            recovery was a direct result of having incurred the injury 
 
            of August 15, 1989.
 
            
 
                 Claimant was released to begin work on February 12, 
 
            1990 (cl. ex. 1, p. 8).  Her work restrictions are best 
 
            described as no excessive bending, lifting, twisting, 
 
            prolonged sitting and prolonged standing (cl. ex. 1, p. 5; 
 
            cl. ex. 5, p. 7).  Dr. Wirtz also imposed a lifting 
 
            restriction of 35 pounds (cl. ex. 5, p. 7).
 
            
 
                 Claimant did not immediately return to work for 
 
            employer as her former job had been reassigned to another 
 
            person.  Employer delayed her recall to work until May 7, 
 
            1990.  Claimant returned to similar duties as a sales person 
 
            as she had performed prior to the injury.  Claimant stated 
 
            that the back injury plagued her with respect to performing 
 
            demonstrations of equipment for potential customers.  She 
 
            stated that she had some problem with driving long 
 
            distances.  Claimant was unable to state with any certainty 
 
            that the back injury had impacted her sales subsequent to 
 
            her return to work,
 
            
 
                 Claimant voluntarily terminated her employment with 
 
            employer on April 16, 1991, so as to accept a sales position 
 
            with the Albert Price Company.  Her new job pays a draw upon 
 
            commission of $450 per week and requires extensive travel 
 
            throughout Iowa.  She will be a sales representative 
 
            responsible for selling products such as small statues, 
 
            picture frames and assorted gift items.  Claimant stated 
 
            that she was capable of driving the long distances required 
 
            in her new job.
 
            
 
                 The first issue to be resolved is whether claimant 
 
            sustained an injury arising out of and in the course of 
 
            employment.  It is found that on August 15, 1989, claimant 
 
            sustained an aggravation injury to her low back when she 
 
            carried an office machine up a flight of stairs in the 
 
            performance of duties for her employer.  Claimant's 
 
            testimony that she lifted a heavy office machine on August 
 
            15, 1989, with resulting exacerbation of low back and left 
 
            leg pain was convincing.  It is very logical to conclude 
 
            that lifting of a 38-pound machine by a 90-pound individual 
 
            would, in all likelihood, aggravate a preexisting low back 
 
            injury.
 
            
 
                 The next issue concerns the causal connection of 
 
            permanent disability to the August 15, 1989, low back 
 
            injury.
 
            
 
                 Only one opinion concerning permanent partial 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            impairment was offered.  Dr. Boulden opined that if any 
 
            permanent impairment was present, that is was caused by the 
 
            August 15, 1989, incident (cl. ex. 1, p. 1).  Dr. Boulden 
 
            deferred his opinion on the extent of impairment to Tom 
 
            Bower, who is a physical therapist, who performs evaluations 
 
            based upon the AMA Guides to the Evaluation of Permanent 
 
            Impairment.  Mr. Bower rated claimant's impairment at 10 
 
            percent to the body as a whole with 5 percent due to a 
 
            degenerative disc and 5 percent due to a loss of range of 
 
            motion (cl. ex. 1, p. 2).
 
            
 
                 Defendants contend that the degenerative disc rating of 
 
            5 percent preexisted the August 15, 1989, injury.  Dr. 
 
            Bunten opined that the disc preexisted the injury (cl. ex. 
 
            4, p. 1).  No medical expert found a causal connection 
 
            between the August 15, 1989, injury and the degenerative 
 
            disc.  It is found that claimant has failed to prove by a 
 
            preponderance of the evidence that the impairment of the 
 
            degenerative disc is causally connected to the August 15, 
 
            1989, injury.
 
            
 
                 Bower also assessed 5 percent impairment due to loss of 
 
            range of motion.  It is found that the loss of range of 
 
            motion is the direct result of the aggravation of claimant's 
 
            preexisting low back injury.  Dr. Boulden stated in his 
 
            letter of March 15, 1990, that the injury of August 15, 
 
            1989, was the "contributing factor that caused the symptoms 
 
            to be present" (cl. ex. 1, p. 1).  The logical 
 
            interpretation of "contributing" is that the August 15, 
 
            1989, accident aggravated the preexisting asymptomatic 
 
            condition.  It is also apparent that permanent work 
 
            restrictions have been imposed by the various examining 
 
            doctors as a result of the injury (cl. ex. 1, p. 6; cl. ex. 
 
            5, p. 7).  
 
            
 
                 Having found permanent impairment and work restrictions 
 
            causally connected to the injury, it follows that claimant 
 
            sustained permanent disability as a result of the August 15, 
 
            1989, injury.
 
            
 
                 The next issue concerns the extent of industrial 
 
            disability.  Factors to be considered include claimant's 
 
            age, education, experience, impairment and work 
 
            restrictions.
 
            
 
                 Claimant was age 50 at the time of injury and a 1957 
 
            high school graduate.  She also completed one year of music 
 
            classes at Cornell College and has prior training and 
 
            experience in real estate sales.  Claimant also has 
 
            experience as an accounting clerk, mortgage loan officer and 
 
            sales representative.  Her earnings in 1985 were about 
 
            $37,000 per year.  However, her work since that time appears 
 
            to be in the earnings range of $18,000 to $23,000 per year.  
 
            Based upon average weekly wage on the date of injury, 
 
            claimant earned about $18,000 per year working for Pitney 
 
            Bowes.  Based upon claimant's draw at her new job, she will 
 
            earn about $23,500 per year.  However, claimant's future 
 
            earnings are speculative and cannot be given great weight.
 
            
 
                 Claimant's impairment rating is in the range of 5 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            percent and her work restrictions prevent prolonged sitting, 
 
            standing and bending.  The work restrictions did, according 
 
            to claimant, inhibit her in her sales profession by causing 
 
            difficulty in performing demonstrations of office equipment.
 
            
 
                 It is found that claimant is an intelligent, hard 
 
            working and highly motivated worker.  In all likelihood she 
 
            will excel in her future endeavors.  However, the permanent 
 
            work restrictions have the effect of limiting her access to 
 
            the job market.  She will undoubtedly be at a disadvantage 
 
            when competing against younger, healthier and better 
 
            educated workers.  It is found that as a result of the 
 
            August 15, 1989, injury, claimant is 15 percent industrially 
 
            disabled.  It is noted that surgery for the back injury was 
 
            not anticipated at the time of hearing.
 
            
 
                 Having found the injury to be a cause of permanent 
 
            disability, it follows that the lost time must be classified 
 
            as healing period.  The parties stipulated to the period of 
 
            lost time, but disputed causation.  It is found that 
 
            claimant has proven entitlement to healing period benefits 
 
            beginning August 18, 1989 through February 11, 1990.  The 
 
            medical exhibits clearly reveal that during the entire 
 
            period, claimant was under treatment for low back symptoms 
 
            which first appeared on August 15, 1989.  It follows that 
 
            the healing period is causally connected to the injury of 
 
            August 15, 1989.
 
            
 
                 The final issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.  The parties stipulated to all 
 
            subissues with the exception of causal connection.  
 
            Defendants contend that the injury is one that occurred at 
 
            home while moving furniture.  This allegation has been 
 
            rejected.  It is true that claimant had a preexisting 
 
            injury, but it is also apparent from the record that the 
 
            August 15, 1989, incident forced claimant to seek treatment.  
 
            It is found that claimant has proven the causal connection 
 
            of her medical treatment to the section 85.27 expenses 
 
            listed by claimant totaling $4,840.10.  Claimant is entitled 
 
            to payment of those medical expenses.  However, claimant is 
 
            not entitled to direct reimbursement for medical bills 
 
            unless she paid them from her own funds.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on August 15, 
 
            1989, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Claimant has proven by the preponderance of the 
 
            evidence that she sustained an injury to her low back on 
 
            August 15, 1989, arising out of and in the course of 
 
            employment.
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitled claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily v. Pooley Lumber Co., 233 Iowa  
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton, 253 Iowa 285, 110 N.W.2d 
 
            660.
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that the injury of August 15, 1989, is a cause of permanent 
 
            disability.
 
            
 
                 Upon considering all the material factors it is found 
 
            that the evidence in this case supports an award of 15 
 
            percent permanent partial disability, which entitles the 
 
            claimant to recover 75 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 Claimant has proven that the healing period in issue is 
 
            causally connected to the August 15, 1989, injury.  Claimant 
 
            is entitled to payment for healing period beginning August 
 
            18, 1989 through February 11, 1990.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 Claimant has established the causal connection of 
 
            medical expenses to the August 15, 1989, injury.  Claimant 
 
            has proven entitlement to payment of the medical expenses 
 
            listed.  Claimant is entitled to direct reimbursement of 
 
            medical expenses to the extent she paid the bills from her 
 
            own funds.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Defendants are to pay claimant seventy-five (75) weeks 
 
            of permanent partial disability at the rate of two hundred 
 
            seventeen and 20/100 dollars ($217.20) per week commencing 
 
            February 12, 1990.
 
            
 
                 Defendants are to pay claimant healing period benefits 
 
            at the rate of two hundred seventeen and 20/100 dollars 
 
            ($217.20) for the period August 18, 1989 through February 
 
            11, 1990.
 
            
 
                 Defendants are to pay claimant's Iowa Code section 
 
            85.27 benefits as outlined in the opinion.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code 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 May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Phillip Vonderhaar
 
            Attorney at Law
 
            840 5th Ave
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Andrew Bracken
 
            Attorney at Law
 
            100 Court Ave STE 600
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51802 52500 51803
 
                      Filed May 8,1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUSAN SCOTT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  930373
 
            PITNEY BOWES,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100 51802 52500
 
            Claimant established an aggravation injury of the low back 
 
            and was awarded healing period benefits and section 85.27 
 
            expenses
 
            
 
            51803
 
            Claimant, age 50 and a high school graduate, had work 
 
            experience consisting primarily as a sales person was given 
 
            impairment at 5 percent and 35-pound work restrictions.  
 
            Employer offered work.  Claimant awarded 15 percent 
 
            industrial disability.