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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES R. MEEKS,             :
 
                                          :
 
                 Claimant,                :    File Nos. 876894, 944018
 
                                          :              930535, 966544
 
            vs.                           :              966545, 966546
 
                                          :              966547
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant, Charles R. Meeks, seeks benefits under the 
 
            Iowa Workers' Compensation Act and has filed seven petitions 
 
            in arbitration against Firestone Tire & Rubber Company, 
 
            employer, and Cigna, insurance carrier, as defendants.
 
            
 
                 The files were consolidated, and a hearing was held on 
 
            January 28, 1992 at Des Moines, Iowa.
 
            
 
                 The record in these cases consists of the testimony 
 
            from the claimant, Dwayne Ables, Carma Mitchell and Michael 
 
            Baker; and joint exhibits 1 through 28.
 
            
 
                 The agency files reveal the following information:
 
            
 
                 1.  December 15, 1987:  Right shoulder injury (agency 
 
            File No. 876894);
 
            
 
                 2.  January 5, 1989:  Lower back injury (agency File 
 
            No. 966544);
 
            
 
                 3.  March 13, 1989:  Left hip injury and low back 
 
            injury (agency File No. 944018);
 
            
 
                 4.  September 15, 1989:  Lower back injury (agency File 
 
            No. 930535);
 
            
 
                 5.  April 10, 1990:  Left hip injury (agency File No. 
 
            966545);
 
            
 
                 6.  September 23, 1990:  Right shoulder injury (agency 
 
            File No. 966546); and,
 
            
 
                 7.  October 1, 1990:  Cumulative injury to the left hip 
 
            (agency File No. 966547).
 
            
 
                 With respect to the first injury (December 15, 1987, 
 

 
            
 
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            File No. 876894), the sole issue to be determined is the 
 
            extent of entitlement to permanent partial disability 
 
            benefits.
 
            
 
                 The second alleged injury (File 966544), the parties 
 
            submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on January 5, 
 
            1989, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal connection to the injury 
 
            and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits (although the parties stipulated 
 
            that claimant did not incur any time off from work due to 
 
            this alleged injury);
 
            
 
                 4.  Whether claimant is entitled to permanent partial 
 
            disability benefits, and whether claimant sustained an 
 
            injury to the body as a whole or to a scheduled member; and,
 
            
 
                 5.  Whether claimant is entitled to medical benefits, 
 
            as governed by Iowa Code section 85.27.
 
            
 
                 The defendants have raised the following affirmative 
 
            defenses:
 
            
 
                 1.  Lack of proper notice under Iowa Code section 
 
            85.23;
 
            
 
                 2.  Failure to file the claim under the proper statute 
 
            of limitations, as governed by Iowa Code section 85.26; and,
 
            
 
                 3.  Unauthorized medical expenses.
 
            
 
                 The next case (File No. 944018) contains the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant received an injury on March 13, 
 
            1989 which arose out of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal connection to the injury 
 
            and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits (the parties stipulate that claimant 
 
            was off work from September 29, 1990 through March 17, 
 
            1991);
 
            
 
                 4.  Whether claimant is entitled to permanent partial 
 
            disability benefits, and whether these benefits are based on 
 
            an injury to the body as a whole or an industrial 
 
            disability; and,
 
            
 
                 5.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 Defendants assert that claimant failed to give notice 
 

 
            
 
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            of the injury, as required by Iowa Code section 85.23, and 
 
            further submit that medical expenses incurred were 
 
            unauthorized.
 
            
 
                 The fourth case (File No. 930535) offers the following 
 
            issues for resolution:
 
            
 
                 .  Whether claimant sustained an injury on September 
 
            15, 1989, which arose out of and in the course of his 
 
            employment;
 
            
 
                 .  Whether there is a causal connection to claimant's 
 
            injury and his disability;
 
            
 
                 .  Whether claimant is entitled to temporary total or 
 
            healing period benefits (although the parties have 
 
            stipulated that claimant was off work and seeks either 
 
            temporary total disability or healing period benefits from 
 
            September 30, 1989 through October 1, 1989);
 
            
 
                 .  Whether claimant is entitled to permanent partial 
 
            disability benefits, including whether claimant sustained an 
 
            injury to a scheduled member or to the body as a whole; and,
 
            
 
                 .  Whether claimant is entitled to medical benefits, as 
 
            governed by Iowa Code section 85.27.
 
            
 
                 Defendants assert that claimant failed to give proper 
 
            notice, as required by Iowa Code section 85.23, and submit 
 
            that he has incurred unauthorized medical treatment.
 
            
 
                 The next case (File No. 966545) contains the following 
 
            issues for resolution:
 
            
 
                 .  Whether claimant sustained an injury on April 10, 
 
            1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 .  Whether there is a causal connection to the injury 
 
            and claimant's disability;
 
            
 
                 .  Whether claimant is entitled to temporary total or 
 
            healing period benefits (the parties stipulate that claimant 
 
            was off work from September 29, 1990 through March 17, 
 
            1991);
 
            
 
                 .  Whether claimant is entitled to permanent partial 
 
            disability benefits, and whether claimant has sustained a 
 
            permanent injury to a scheduled member or the body as a 
 
            whole; and,
 
            
 
                 .  Whether claimant is entitled to medical benefits, 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 Defendants raised the following affirmative defenses:
 
            
 
                 .  Lack of proper notice of the injury, as required by 
 
            Iowa Code section 85.23; and,
 
            
 
                 .  Medical expenses incurred were unauthorized.
 

 
            
 
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                 The sixth case (File No. 966546) discloses the 
 
            following issues for resolution:
 
            
 
                 .  Whether claimant sustained an injury on September 
 
            23, 1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 .  Whether there is a causal connection to the injury 
 
            and claimant's disability;
 
            
 
                 .  Whether claimant is entitled to temporary total or 
 
            healing period benefits (the parties stipulated that 
 
            claimant did not lose any time from work due to these 
 
            injuries);
 
            
 
                 .  Whether claimant is entitled to permanent partial 
 
            disability benefits, and if so, whether claimant has 
 
            sustained an injury to a scheduled member or to the body as 
 
            a whole; and,
 
            
 
                 .  Whether claimant is entitled to medical benefits, as 
 
            governed by Iowa Code section 85.27.
 
            
 
                 Defendants assert the following affirmative defenses:
 
            
 
                 .  Failure to give proper notice of the injury, as 
 
            required by Iowa Code section 85.23; and,
 
            
 
                 .  Medical expenses incurred were unauthorized.
 
            
 
                 Finally, the last case (File No. 966547) contains the 
 
            following issues for resolution:
 
            
 
                 .  Whether claimant sustained a cumulative injury in 
 
            October of 1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 .  Whether there is a causal connection to claimant's 
 

 
            
 
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            injury and his disability;
 
            
 
                 .  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits (the parties stipulate 
 
            that claimant was off work from September 29, 1990 through 
 
            March 17, 1991);
 
            
 
                 .  Whether claimant is entitled to permanent partial 
 
            disability benefits, and if so, whether claimant has 
 
            sustained an injury to a scheduled member or to the body as 
 
            a whole; and,
 
            
 
                 .  Whether claimant is entitled to medical benefits, as 
 
            governed by Iowa Code section 85.27.
 
            
 
                 Defendants raise the following affirmative defenses:
 
            
 
                 .  Lack of proper notice, as required by Iowa Code 
 
            section 85.23; and,
 
            
 
                 .  Unauthorized medical expenses.
 
            
 
                 Interestingly, defendants also dispute that claimant's 
 
            injuries to his rotator cuff, low back and hip are injuries 
 
            to the body as a whole, yet offer no guidance as to which 
 
            part of the schedule applies.  This agency has routinely 
 
            held that these types of injuries are to be compensated on 
 
            an industrial basis, and shall be in the present cases.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Charles Meeks was born on December 15, 1933, and at the 
 
            time of the hearing was 58 years old.  He is a 1952 high 
 
            school graduate, and has taken additional courses in welding 
 
            and math at Des Moines Technical Institute and during the 
 
            service.  He has also attended several seminars sponsored by 
 
            NAPA Auto Parts regarding the latest technology on cars.
 
            
 
                 Claimant entered the United States Army in April 1955, 
 
            and received an honorable discharge in March of 1958.  While 
 
            in the service, he was sent to Fort Benning, Georgia, and 
 
            worked as an offset printer.
 
            
 
                 After his discharge from the army, claimant began work 
 
            as a door-to-door salesperson for Fuller Brush.  After three 
 
            or four years of selling household products, he obtained 
 
            employment with O.K. Tire on a part-time basis, where his 
 
            duties included repairing, balancing and installing tires.  
 
            During this time, claimant also worked as a fireman for the 
 
            Des Moines Fire Department.
 
            
 
                 In August of 1965, claimant secured employment with 
 
            Firestone Tire & Rubber Company (herein after called 
 
            Firestone).  He has always worked in the plant in Des 
 
            Moines, and his initial employment was in the curing 
 
            department.  In this position, claimant was required to bag 
 
            tires.  After three years, claimant moved to the passenger 
 

 
            
 
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            tire building department where he worked for four to five 
 
            years.  Claimant was then transferred to the intermediate 
 
            tractor tire and heavy duty tire departments.   Eventually, 
 
            claimant was able to work in both departments due to his 
 
            seniority and expertise.  The intermediate tire tractor 
 
            department builds tractor tires of six feet or taller, 
 
            weighing between 100 to 600 pounds.  The heavy duty tire 
 
            department produces tires which are used on earth movers, 
 
            with the tires weighing in excess of 1000 pounds, and 
 
            anywhere from six to ten feet in height.
 
            
 
                 On December 15, 1987, claimant was working in the heavy 
 
            duty tire department.  He was attempting to take a jack out 
 
            of a drum which was being used to build a tire and felt a 
 
            tear in his right shoulder area.  He reported the incident 
 
            to the company nurse at the end of his shift, and was seen 
 
            by the company doctor at the plant.  Claimant was assigned 
 
            to light duty work, and in February of 1988 underwent 
 
            surgery for repair of a rotator cuff.  Marvin Dubansky, 
 
            M.D., performed the surgery and released claimant to return 
 
            to regular duties in August 1988.
 
            
 
                 Prior to the right shoulder work injury, claimant on 
 
            two occasions had injured his right shoulder.  Neither 
 
            injury required extended medical treatment nor surgery.
 
            
 
                 On January 5, 1989, claimant was again working in the 
 
            heavy duty tire department.  He had been assigned to help 
 
            build the largest floatation tire manufactured at the plant.  
 
            As claimant was leaning over the center, he felt a "pull" in 
 
            his lower back.  Claimant reported the incident to the 
 
            company nurse, and was examined by the company doctor who 
 
            diagnosed a pulled muscle.  Apparently, claimant was taken 
 
            off of regular duties until January 9, 1989 (Jt. Ex. 13, p. 
 
            12).
 
            
 
                 The next incident alleged by claimant is an injury on 
 
            March 13, 1989.  At the hearing, claimant testified that he 
 
            was working in the heavy duty tire building department, and 
 
            was attempting to stretch a tire over a collapsed drum.  In 
 
            so doing, claimant states that he was pushing and flipping a 
 
            large tire and hurt his left hip and low back.
 
            
 
                 Claimant reported the incident to the company nurse and 
 
            was sent to the company doctor (Jt. Ex. 13, p. 12).  
 
            Eventually, claimant was referred to Dr. Dubansky (Jt. Ex. 
 
            13, p. 13).  Office notes from Dr. Dubansky dated April 25, 
 
            1989, indicate that claimant was complaining of a painful 
 
            low back and left hip.  Claimant had seen a chiropractor for 
 
            right leg pain which had subsided at the time of his 
 
            appointment with Dr. Dubansky.  Upon examination, claimant 
 
            was able to perform straight leg raising bilaterally.  
 
            External rotation, abduction and adduction were equal, and 
 
            x-rays showed narrowing in the left hip area.  Dr. Dubansky 
 
            injected the left hip and scheduled a two week follow-up 
 
            visit (Jt. Ex. 1, p. 19).
 
            
 
                 Claimant continued to see Dr. Dubansky in May and June 
 
            of 1989.  He was treated with Voltaren and pool therapy at 
 
            Mercy Hospital.  Claimant was continuing to work on light 
 

 
            
 
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            duty, and on July 18, 1989, claimant was released to return 
 
            to work for regular duty.  Dr. Dubansky's notes indicate 
 
            that claimant's problems constitute an arthritic 
 
            manifestation (Jt. Ex. 1, pp. 19-20).  Furthermore, Dr. 
 
            Dubansky indicated that claimant's work injury of March 13, 
 
            1989 was a minor aggravation of a preexisting arthritic 
 
            condition which did not substantially aggravate his 
 
            underlying condition (Jt. Ex. 3, p. 8).
 
            
 
                 In July of 1989, claimant returned to his regular job 
 
            duties, again in the heavy duty tire building area.  He 
 
            testified that on September 15, 1989, he hurt his low back 
 
            while trying to remove a tire from a drum.
 
            
 
                 Again, he reported the incident to the company nurse 
 
            and was seen by the company physician, James Blessman, M.D. 
 
            (Jt. Ex. 13, p. 14).  Dr. Blessman recommended light duty 
 
            work, and sent claimant to the Methodist Clinic for 
 
            injections to the sciatic nerve.  Claimant was scheduled for 
 
            a CT scan was referred to Robert Jones, M.D., for 
 
            consultation (Jt. Ex. 11, p. 1).
 
            
 
                 The CT scan was scheduled for November of 1989, and the 
 
            results showed a central bulging disc at the lumbosacral 
 
            area of the spine.  Dr. Jones commented that the condition 
 
            did not warrant surgery at this time, and recommended 
 
            further conservative treatment.  Dr. Jones also noted that 
 
            claimant had degenerative disease of the left hip (Jt. Ex. 
 
            2, p. 1).
 
            
 
                 Claimant returned to Dr. Blessman for follow-up 
 
            treatment, and was released to return to regular duty on 
 
            January 18, 1990.  Dr. Blessman noted that if claimant was 
 
            "not able to tolerate at this time, I would recommend a 
 
            permanent tire building restriction on him as he has had a 
 
            number of problems with it and may need to make a permanent 
 
            change." (Jt. Ex. 11, p. 2).
 
            
 
                 The next injury date alleged by claimant is that of 
 
            April 10, 1990.  Claimant testified that he injured his left 
 
            hip while trying to avoid being hit by a tire.  This 
 
            incident is reflected in Dr. Blessman's notes dated April 
 
            11, 1990.  Dr. Blessman also states that:  "It was my sense 
 
            that he may need a permanent restriction from tire building 
 
            if he gets into significant time off or limited duty this 
 
            time would go ahead and put him on a permanent restriction 
 
            as it is obvious he is going to continue to reinjure himself 
 
            doing this work." (Jt. Ex. 11, p. 2).
 
            
 
                 Although claimant testified that he then went to see 
 
            Richard Evans, D.O., his family physician for further 
 
            treatment on his left hip, the notes indicate that claimant 
 
            actually saw Dr. Evans for left hip pain on January 12 and 
 
            April 3, 1990.  Dr. Evans' overall assessment of claimant's 
 
            condition was that of degenerative joint disease of the left 
 
            hip (Jt. Ex. 10, pp. 1-3).  Claimant was referred to several 
 
            other physicians including Joshua Kimelman, D.O., Rodney 
 
            Johnson, M.D., and Richard Johnston, M.D.
 
            
 
                 The next injury alleged by claimant is to his right 
 

 
            
 
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            shoulder.  Claimant stated that on September 23, 1990, as he 
 
            was working light duty at the plant, he was performing 
 
            overhead work and felt a tear in his right shoulder.  He 
 
            reported it to the company nurse, and was sent to Dr. 
 
            Dubansky (Jt. Ex. 13, p. 16).  Claimant was told to continue 
 
            on light duty.
 
            
 
                 Finally, the last injury date alleged is a cumulative 
 
            injury occurring in October of 1990 with respect to 
 
            claimant's hip condition.  Claimant underwent a total hip 
 
            replacement in October of 1990.  This replacement was 
 
            performed by Dr. Kimelman, who kept claimant off of work 
 
            from September 29, 1990 through March 17, 1991.
 
            
 
                 The parties have obtained numerous expert opinions with 
 
            respect to claimant's numerous ailments and whether they are 
 
            a result of his work activities at the Firestone Tire & 
 
            Rubber Company plant.
 
            
 
                 On December 1, 1989, Dr. Jones made the following 
 
            assessment:
 
            
 
                    I saw your patient, Mr. Meeks in the office on 
 
                 November 27 with the problem of low back pain 
 
                 extending into the left groin and without leg 
 
                 pain.  He said this came on after he hurt himself 
 
                 building tires at work in March, 1989 and he saw 
 
                 Dr. Dubansky at that time....He then re-hurt his 
 
                 back on the job in September of this year and 
 
                 developed pain in both legs and saw you....I note 
 
                 he is on Voltaren for his knuckles which he says 
 
                 is related to his years of tire-building.  It also 
 
                 helps his hip.  He did have a fractured femur in 
 
                 1954.
 
            
 
                    The Ct of the lumbar spine showed a central 
 
                 bulging disc at lumbosacral with early stenosis.
 
            
 
                    ....
 
            
 
                    I thought he had a central bulging disc with 
 
                 early stenosis at lumbosacral which I did not 
 
                 think was surgical at this time.  He also has 
 
                 degenerative disease of the left hip helped by 
 
                 Voltaren.
 
            
 
            (Jt. Ex. 2, p. 1)
 
            
 
                 On May 31, 1990, Dr. Johnson performed an examination 
 
            and evaluation with the following results:
 
            
 
                    Charles Meeks is a 56 year old individual who 
 
                 works at Firestone.  He has worked at Firestone 
 
                 for the past 25 years.  His job is building the 
 
                 large tires of the earth mover tractors and he has 
 
                 done this for 25 years and there obviously is a 
 
                 significant amount of lifting, pushing, pulling, 
 
                 stooping that he has done repetitively over a long 
 
                 period of time.  He has had discomfort with his 
 
                 left hip, significant discomfort at least for 
 

 
            
 
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                 approximately one year....
 
            
 
                    ....
 
            
 
                    It is my impression that his work has 
 
                 contributed to the degenerative joint disease that 
 
                 he has and his injury one year ago while lifting 
 
                 aggravated this condition to the present time 
 
                 where he is having pain almost continuously.
 
            
 
            (Jt. Ex. 6, pp. 1-3)
 
            
 
                 Dr. Johnston made the following assessment on June 25, 
 
            1990:
 
            
 
                    Mr. Meeks is a 56 year old tire builder at 
 
                 Firestone who comes in for evaluation of his 
 
                 painful left hip.  He dates the onset of his 
 
                 symptoms to an episode at work building a very 
 
                 large tire in March of 1989.  Since that time he 
 
                 has had increasing pain in his left hip and now 
 
                 has rather severe pain in his left hip with 
 
                 activity and at rest in spine of Voltaren and 
 
                 Tylenol #3....
 
            
 
                    ....
 
            
 
                 ...Mr. Meeks is markedly disabled by his painful 
 
                 left hip.  He is quite convinced that his problem 
 
                 was caused by his work.  I told him that I did not 
 
                 believe that his work caused the primary 
 
                 degenerative arthritis in his hip but I certainly 
 
                 would agree with him that his situation was 
 
                 significantly aggravated by his work episode.
 
            
 
            (Jt. Ex. 7, pp. 1-3)
 
            
 
                 On April 2, 1991, Dr. Kimelman, who performed the hip 
 
            replacement, made the following assessment:
 
            
 
                 I believe that from March of 1989 until the time 
 
                 of Mr. Meeks' hip surgery there was significant 
 
                 progression of his left hip condition which may be 
 
                 related to an injury sustained on or about March 
 
                 13 of 1989 and certainly repeated work activities 
 
                 materially aggravated his left hip condition.
 
            
 
                 ...I'm unable to assess how much deterioration was 
 
                 caused by that injury in the fact of rather marked 
 
                 progress of his hip disease during that interval.
 
            
 
                 ...I believe that Mr. Meeks had a rapid 
 
                 deterioration of his left hip between March of 
 
                 1989 and his eventual surgery in October of 1990.  
 
                 Progressive activity would cause progressive 
 
                 deterioration of the joint.
 
            
 
                    As my office record on March 8, 1991 indicated, 
 
                 Mr. Meeks has had a good relief of pain from his 
 
                 hip joint replacement and now has a functional 
 

 
            
 
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                 range of motion in the hip.  I believe he has 
 
                 sustained permanent impairment as his hip 
 
                 obviously is no longer "normal."  The greatest 
 
                 amount of his impairment is secondary to his 
 
                 restrictions from heavy lifting, pushing, pulling, 
 
                 etc. as the unknown issue with hip replacement is 
 
                 the question of longevity.
 
            
 
            (Jt. Ex. 4, pp. 1-2)
 
            
 
                 In May of 1991, Dr. Kimelman supplemented his opinion:
 
            
 
                    Finally in answer to Mr. Meeks' permanent 
 
                 impairment as regards his total hip, I did not 
 
                 assess a percentage rating and I believe that 
 
                 according to the AMA Guide, a good functioning 
 
                 total hip such as Mr. Meeks condition represents 
 
                 20% permanent impairment of the lower extremity.
 
            
 
            (Jt. Ex. 4, p. 4)
 
            
 
                 Dr. Jones contributed the following opinion on June 3, 
 
            1991:
 
            
 
                 I feel that at least the injury at work in March 
 
                 1989, the injury in September 1989, and probably 
 
                 the injury in January 1989, were all important 
 
                 causal factors in this patient's continued back 
 
                 pain problem.
 
            
 
                 ...I could not put an impairment figure on each 
 
                 one of these injuries; but tied together as a 
 
                 whole, I would estimate his permanent physical 
 
                 impairment to be in the range of 7-10 percent as 
 
                 contained in the AMA guides.  I think his back 
 
                 will continue to give him problems, based on the 
 
                 fact that it had given him difficulties for all 
 
                 this time.  Physical restrictions would be to 
 
                 avoid bending and lifting, other than in a minor 
 
                 way, and excessive walking, since this appears to 
 
                 bother his low back.
 
            
 
            (Jt. Ex. 2, p. 2)
 
            
 
                 Dr. Dubansky stated the following opinion on December 
 
            18, 1991:
 
            
 
                 1.  I have not recommended any further surgery for 
 
                 Mr. Meek's [sic] right shoulder.  In my evaluation 
 
                 of April, 1991 I did increase the impairment 
 
                 rating of the right shoulder from the previous 15% 
 
                 of the right upper extremity to 18% of the right 
 
                 upper extremity.
 
            
 
                 2.  I believe Mr. Meeks could continue working as 
 
                 a forklift driver in jobs which do not require him 
 
                 to do any lifting with the right arm away from the 
 
                 body or above the head.
 
            
 
                 3.  I felt that he had a degenerative arthritis in 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 his left hip and was receiving medication for the 
 
                 arthritis before the work injury of March of 1989.  
 
                 I felt this would be a minor aggravation of his 
 
                 pre-existing condition.  The accident was not the 
 
                 cause of his arthritis in the hip and I do not 
 
                 feel it was a substantial aggravating factor in 
 
                 his underlying condition which eventually 
 
                 warranted surgery.
 
            
 
            (Jt. Ex. 3, p. 8)
 
            
 
                          analysis & conclusions of law
 
            
 
            FILE NO. 876894 - RIGHT SHOULDER INJURY ON DECEMBER 15, 1987
 
            
 
                 The sole issue to be addressed is the extent of 
 
            entitlement to permanent partial disability benefits.
 
            
 
                 Although defendants attempt to argue that claimant 
 
            sustained a scheduled member injury, agency precedence is 
 
            quite clear that an injury to the shoulder, and more 
 
            specifically to the rotator cuff, is an injury to the body 
 
            as a whole.  Therefore, claimant's industrial disability 
 
            must be evaluated.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 

 
            
 
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            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of this injury, claimant was 54 years of 
 
            age.  He is a high school graduate, and has taken additional 
 
            course work in welding and math courses.
 
            
 
                 Most, if not all, of claimant's employment history has 
 
            been concentrated in the medium to heavy work categories.  
 
            He has worked for defendant company for approximately 25 
 
            years.
 
            
 
                 Claimant's hobbies include working on cars.  
 
            Occasionally, he has gained an income from this hobby, 
 
            although his ability to pursue this activity has been 
 
            limited due to his physical condition.
 
            
 
                 Claimant has some transferable skills, but it is 
 
            unlikely that he would be able to secure employment that 
 
            would compensate him on a level comparable to the hourly 
 
            wage he was earning while working at Firestone.
 
            
 
                 Claimant has endured a six month healing period due to 
 
            the injury to his rotator cuff in the right shoulder.  
 
            However, he was released to return to regular duty work, 
 
            which he accomplished until his next injury, in January of 
 
            1989.
 
            
 
                 However, it is noted that claimant has sustained a 15 
 
            percent impairment to the right shoulder due to the injury.  
 
            As a result, he has sustained a 15 percent industrial 
 
            disability, and shall be compensated on the basis of 500 
 
            weeks.  Therefore, claimant is entitled to 75 weeks of 
 
            benefits at the rate of $481.22 per week.  These benefits 
 
            shall start on August 24, 1988.
 
            
 
            FILE NO. 966544 - BACK INJURY ON JANUARY 5, 1989.
 
            
 
                 In this file, the first issue to be determined is 
 
            whether claimant sustained an injury on January 5, 1989, 
 
            which arose out of and in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on January 5, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Claimant testified that as he was leaning over a tire 
 
            to pull back a ring, he felt a pull in his lower back.  He 
 
            reported to the company nurse, a fact which is evidenced by 
 
            her notes dated January 5, 1989.  Additionally, claimant was 
 
            taken off regular duty and put on light duty work until 
 
            January 9, 1989 (Jt. Ex. 13, p. 12).
 
            
 
                 The evidence clearly shows that claimant was performing 
 
            his regular job duties required by his assigned position 
 
            during his regular work shift.  Nothing indicates that 
 
            claimant was doing anything other than what was required of 
 
            him, and it is also clear that the act of pulling a piece of 
 
            equipment while leaning over something would likely cause 
 
            back pain.  As a result, it is found that claimant sustained 
 
            an injury which arose out of and in the course of his 
 
            employment on January 5, 1989.
 
            
 
                 Defendants raise two affirmative defenses for this 
 
            claim.  Specifically, they assert that claimant did not give 
 
            proper notice as provided for under Iowa Code section 85.23.
 
            
 
                 This code section provides, in relevant part:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Notice to a company representative, such as a nurse, 
 
            has routinely been considered notice to an employer.  
 
            Likewise, claimant was placed on a temporary assignment for 
 
            light duty work, so it was evident that the supervisor knew 
 
            of the back problem.  As a result, it is found that 
 
            defendants' claim of lack of notice of the injury is without 
 
            merit.
 
            
 
                 Defendants also raise the affirmative defense that 
 
            claimant failed to file his petition within the appropriate 
 
            statute of limitations.
 
            
 
                 Iowa Code section 85.26 provides the following 
 
            information:
 
            
 
                    An original proceeding for benefits under this 
 
                 chapter...shall not be maintained in any contested 
 
                 case unless the proceeding is commenced within two 
 
                 years from the date of the occurrence of the 
 
                 injury for which benefits are claimed or, if 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 weekly compensation benefits are paid under 
 
                 section 86.13, within three years from the date of 
 
                 the last payment of weekly compensation benefits.
 
            
 
                 A review of the file confirms that claimant's petition 
 
            was filed on January 4, 1991.  Claimant was not paid 
 
            benefits for this injury, but has complied with the statute 
 
            as he filed his petition within two years from the date of 
 
            the injury.
 
            
 
                 As a result, it is found that defendants' second 
 
            affirmative defense is without merit.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal connection between claimant's disability and his 
 
            current disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 5, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. 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 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed disabil
 
            ity.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980).
 
            
 
                 There is no indication that claimant missed any work 
 
            for this injury.  He did see the company doctor on several 
 
            occasions, but no impairment rating was rendered, and no 
 
            medical restrictions were placed on claimant's activities.  
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            As a result, it is found that claimant did not sustain a 
 
            permanent injury, and he is not entitled to receive any 
 
            temporary disability benefits or permanent partial 
 
            disability benefits.
 
            
 
                 Although medical expenses were placed in issue, 
 
            claimant did not incur any medical expenses due to this 
 
            specific incident, and the issue will not be addressed.
 
            
 
            FILE NO. 944018 - LEFT HIP AND BACK INJURY ON MARCH 13, 1989
 
            
 
                 The first issue to be address with respect to this 
 
            injury is whether claimant sustained an injury on March 13, 
 
            1989, which arose out of and in the course of his employment 
 
            with Firestone.
 
            
 
                 Relevant citations to the law have been set out 
 
            previously and will not be reiterated.
 
            
 
                 At the hearing, claimant stated that while working on a 
 
            large tire, he attempted to stretch rubber over a drum, and 
 
            while pushing and flipping a tire hurt his left hip and low 
 
            back.
 
            
 
                 Claimant again reported the incident to the company 
 
            nurse and was sent to the company doctor (Jt. Ex. 13, p. 
 
            12).  Claimant was eventually referred to another physician 
 
            for treatment.
 
            
 
                 Once again, the record clearly shows that claimant was 
 
            performing his regular job duties in a time, place and 
 
            manner required.  And, claimant has consistently described 
 
            the incident to support a finding that he did sustain an 
 
            injury which arose out of and in the course of his 
 
            employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal connection between claimant's injury and his 
 
            disability.
 
            
 
                 Law applicable to this issue has been set out 
 
            previously and will not be reiterated.
 
            
 
                 Defendants argue that claimant's condition on and after 
 
            March 13, 1989, is attributable solely to an arthritic 
 
            condition for which claimant had been treated (Jt. Ex. 1, p. 
 
            20).  Furthermore, defendants rely upon Dr. Dubansky's 
 
            report dated December 18, 1991, which states that claimant's 
 
            injury of March 1989 was a minor aggravation of his 
 
            preexisting arthritic condition (Jt. Ex. 3, p. 4).  
 
            Furthermore, defendants argue that claimant's complaints 
 
            centered around his low back, not his hip.
 
            
 
                 Although defendants' arguments are not without some 
 
            merit, it is also shown by the records that Dr. Dubansky 
 
            ordered x-rays and injections of the hip in his notations 
 
            regarding claimant's lower back area (Jt. Ex. 1, pp. 19-20).
 
            
 
                 Claimant relies upon evaluations performed by Doctors 
 
            Johnson, Johnston, Kimelman and Jones to support a finding 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            of a causal connection between claimant's physical condition 
 
            and the injury in March of 1989.
 
            
 
                 Most notably, Dr. Kimelman, who performed the hip 
 
            replacement in April of 1991, related claimant's condition 
 
            to arthritis, but stated that repeated work activities 
 
            materially aggravated the left hip condition.
 
            
 
                 As stated many times by this agency, 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 v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson 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).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 Although there is some evidence in the record which 
 
            indicates that claimant received some medication for his 
 
            arthritic condition, it was not shown that claimant had 
 
            missed any work due to this condition.  Given the repetitive 
 
            and heavy lifting nature of the position at Firestone, it 
 
            seems logical that claimant would have aggravated his 
 
            condition by performing his job duties.  As a result, it is 
 
            found that there is a causal connection between claimant's 
 
            injury and his condition.
 
            
 
                 Due to the complexities and volume of the cases filed 
 
            on behalf of claimant, and due to the overlapping of 
 
            physical ailments and issues in the cases, claimant's 
 
            permanency and entitlement to industrial disability will be 
 
            discussed in conjunction with claimant's other low back and 
 
            left hip injuries.
 
            
 
                 
 
            FILE NO. 930535 - BACK INJURY ON SEPTEMBER 15, 1989
 
            
 
                 Once again, the first issue to be addressed is whether 
 
            claimant sustained an injury on September 15, 1989, which 
 
            arose out of and in the course of his employment.
 
            
 
                 Once again, claimant's testimony is corroborated by 
 
            medical records from both the company nurse and the company 
 
            physician, Dr. Blessman (Jt. Ex. 13, p. 14; Jt. Ex. 11, p. 
 
            1; Jt. Ex. 2, p. 1).
 
            
 
                 As a result, it is found that claimant did sustain an 
 
            injury to his low back in September of 1989.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits as a 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            result of the injury.
 
            
 
                 The parties stipulated that claimant was off of work on 
 
            September 30 and October 1, 1989.  In order to receive any 
 
            type of temporary total disability benefits, claimant would 
 
            have had to have missed more than three days of work.  
 
            Likewise, in order for claimant to receive any type of 
 
            healing period benefits, claimant would have to show that he 
 
            sustained a permanent injury.  In this respect, claimant has 
 
            failed to sustain his burden of proof for this particular 
 
            injury and takes nothing for this file.
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
            FILE NO. 966545 - LEFT HIP INJURY ON APRIL 10, 1990
 
            
 
                 Again, the defendants deny that claimant sustained an 
 
            injury on April 10, 1990, which arose out of and in the 
 
            course of his employment.
 
            
 
                 The evidence clearly shows that claimant was in the 
 
            course of his employment when he again aggravated his left 
 
            hip condition.  He reported the incident to the company 
 
            nurse.  As a result, it is found that claimant did sustain 
 
            an injury on April 10, 1990, which arose out of and in the 
 
            course of his employment with Firestone.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal connection to the injury and claimant's disability.
 
            
 
                 As shown in Dr. Blessman's notes, he recommended that 
 
            claimant obtain employment other than tire building due to 
 
            his hip condition.  In fact, he states that claimant will 
 
            "continue to reinjure himself doing this work." (emphasis 
 
            added)  There appears to be absolutely no question and no 
 
            doubt that claimant's condition is related to his work.  
 
            Although defendants are continually trying to argue that 
 
            this can all be blamed on claimant's arthritic condition, 
 
            and it has been shown that claimant certainly does have an 
 
            arthritic condition, there is absolutely no evidence that 
 
            suggests claimant's preexisting condition foreclosed any 
 
            work activities.  Therefore, it is found that claimant's 
 
            condition is causally related to the injuries, and he is 
 
            entitled to healing period benefits for the time he was off 
 
            work.
 
            
 
                 
 
            FILE NO. 966546 - RIGHT SHOULDER INJURY ON SEPTEMBER 23, 
 
            1990
 
            
 
                 Once again, defendants deny that claimant sustained an 
 
            injury on September 23, 1990, which arose out of and in the 
 
            course of his employment.
 
            
 
                 Once again, the evidence is clear that he did receive 
 
            such an injury (Jt. Ex. 13, p. 16).
 
            
 
                 Claimant did not miss any work for the injury, but 
 
            continued in a light duty capacity.  Dr. Dubansky increased 
 
            the impairment to claimant's shoulder from 15 percent to 18 
 
            percent.  Claimant is awarded additional permanent partial 
 
            disability benefits due to this accident in the amount of 15 
 
            weeks (3 percent of 500 weeks).
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            
 
            FILE NO. 966547 - LEFT HIP INJURY IN OCTOBER OF 1990
 
            
 
                 Finally, the seventh petition filed by claimant 
 
            indicates that he sustained a cumulative injury in October 
 
            of 1990, which arose out of and in the course of his 
 
            employment.
 
            
 
                 Once again, defendants have refused to accept any 
 
            responsibility for the injury.  Again, the medical evidence 
 
            is quite clear that claimant's condition was substantially 
 
            aggravated by his employment.  Therefore, it is found that 
 
            claimant's cumulative injury arose out of and in the course 
 
            of his employment.
 
            
 
                 With respect to all of the injuries to claimant's left 
 
            hip, it is found that there is a causal relationship between 
 
            the injuries he sustain while working for Firestone, and his 
 
            current disability.  He certainly has a permanent 
 
            disability, as reflected in the opinions previously set out 
 
            in this opinion.  Therefore, his industrial disability is to 
 
            be determined based upon his loss of earning capacity.
 
            
 
                 Perhaps the most difficult aspect of this case is 
 
            determining which injury caused claimant's industrial 
 
            disability.  The undersigned takes some solace in the fact 
 
            that even the treating physicians were unable to pinpoint 
 
            which incident at work caused the most substantial 
 
            aggravation to claimant's preexisting arthritic condition.  
 
            Claimant obviously sustained a series of accidents while at 
 
            work that substantially aggravated his condition, and 
 
            eventually led to surgery.  After considering the evidence 
 
            received, the undersigned can render a determination of 
 
            claimant's industrial disability based on the cumulative 
 
            effect of all of the injuries to the hip.
 
            
 
                 In considering claimant's industrial disability, the 
 
            undersigned has considered claimant's age, skills and 
 
            employment options carefully.
 
            
 
                 Although claimant has few employment skills that are 
 
            transferable outside the Firestone plant, some of the 
 
            evidence suggests that claimant would be able to drive a 
 
            forklift.  It is unreasonable to expect claimant to initiate 
 
            a business that requires him to repair and restore cars, as 
 
            it is difficult to believe his physical condition would 
 
            tolerate the constant bending, stooping and lifting 
 
            required.
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained an additional 50 percent industrial disability 
 
            related to the hip injuries and replacement.
 
            
 
                 On six of the seven files, defendants have advanced the 
 
            defense that claimant's medical treatment was unauthorized.  
 
            For almost twenty years, this agency has consistently held 
 
            that if the employer denies compensability of an injury, it 
 
            cannot assert that an employee's medical treatment was 
 
            unauthorized.  Therefore, defendants' assertion that 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            claimant's medical treatment is unauthorized is rejected.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits for the time he was off of work for each of the 
 
            injuries.
 
            
 
                 That for file No. 876894, defendants shall pay claimant 
 
            permanent partial disability benefits for seventy-five (75) 
 
            weeks at the rate of four hundred eighty-one and 22/100 
 
            dollars ($481.22) per week beginning August 24, 1988.
 
            
 
                 That for file Nos. 944018, 966545 and 966547, 
 
            defendants shall pay claimant permanent partial disability 
 
            benefits for two hundred fifty (250) weeks at the rate of 
 
            five hundred four and 71/100 dollars ($504.71) per week 
 
            beginning March 18, 1991.
 
            
 
                 That for file No. 966546, defendants shall pay claimant 
 
            permanent partial disability benefits for fifteen (15) weeks 
 
            at the rate of five hundred fifteen and 58/100 dollars 
 
            ($515.58) per week beginning September 24, 1990.
 
            
 
                 That defendants shall pay the costs of claimant's 
 
            medical treatment, as provided by Iowa Code section 85.27.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants are entitled to a credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Phillip C Vonderhaar
 
            Attorney at Law
 
            840 5th Ave
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            Des Moines IA 50309
 
            
 
            Mr Jeffrey M Margolin
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM A. WESLEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 930620
 
                                          :
 
            HIGHWAY CARRIER/              :      A R B I T R A T I O N
 
            ACE TRUCK LINES,              :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            A. Wesley against his former employer, Highway Carrier 
 
            Corporation, also referred to as Ace Truck Lines, and its 
 
            insurance carrier, Liberty Mutual Insurance Company, based 
 
            upon an injury that occurred on September 27, 1989.  Wesley 
 
            seeks healing period compensation, permanent partial 
 
            disability compensation and payment of medical expenses in 
 
            connection with that September 27, 1989 injury.
 
            
 
                 The case was heard at Des Moines, Iowa on January 24, 
 
            1991.  The record in this proceeding consists of testimony 
 
            from William A. Wesley, joint exhibits A through D and 
 
            claimant's exhibits 1 through 4.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 William A. Wesley is a 55-year-old man who did not 
 
            complete high school.  All his working life has been 
 
            performed in jobs which entail a substantial amount of 
 
            physical labor.  He has worked in the fields of automobile 
 
            radiator repair, moving and storage, commercial electric 
 
            signs and truck driving.  Wesley completed a truck driving 
 
            school in June 1989 before commencing his employment with 
 
            Highway Carrier Corporation later that same month.
 
            
 
                 Wesley worked for Ace Lines as an over-the-road truck 
 
            driver.  His pay was based upon the number of miles he 
 
            traveled and the fees generated by the loads which he 
 
            hauled.  His average gross earnings were approximately 
 
            $500.00 per week.  The work required unloading materials.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 On or about September 27, 1989, Wesley injured his back 
 
            while unloading tires at Rock Island, Illinois.  He reported 
 
            the incident and was directed to drive to Cleveland, Ohio to 
 
            obtain another load.  Claimant decided to return to the 
 
            terminal at Altoona, Iowa and did so.  There is a dispute in 
 
            the record with regard to whether claimant told the 
 
            dispatcher he was capable of going to Cleveland or whether 
 
            claimant requested to return to Altoona and see a doctor.  
 
            Resolution of that dispute is not necessary in order to 
 
            determine the issues in this case.
 
            
 
                 Claimant returned to Altoona, removed his personal gear 
 
            from the truck and went home.  The following afternoon, he 
 
            sought medical treatment, was taken off work and was placed 
 
            in physical therapy.  The following morning he contacted his 
 
            employer to report the results of his medical appointment 
 
            and was told that his employment had been terminated because 
 
            he had returned to the Altoona terminal contrary to the 
 
            employer's directions.  Claimant was then referred to the 
 
            company physician, David T. Berg, D.O.
 
            
 
                 Dr. Berg prescribed treatment in the nature of physical 
 
            therapy, medication and taking claimant off work.  After 
 
            approximately a month of conservative treatment and 
 
            diagnostic tests, Dr. Berg released claimant to return to 
 
            work.  When released, Dr. Berg had scheduled claimant for 
 
            additional physical therapy (exhibit 1, page 3).  Claimant 
 
            did not feel recovered and sought authorization to see a 
 
            different physician, but the request was denied.
 
            
 
                 Claimant then sought treatment on his own initiative 
 
            through Des Moines orthopaedic surgeon William R. Boulden, 
 
            M.D.  Dr. Boulden diagnosed claimant's condition as facet 
 
            tropism with degenerative joint disease (exhibit 2, page 4).  
 
            He felt that the symptoms claimant was experiencing at that 
 
            time were causally connected to the September 27, 1989 
 
            injury and characterized that injury as an aggravation of a 
 
            preexisting condition (exhibit 2, page 4).  Dr. Boulden 
 
            indicated that claimant was unable to return to his previous 
 
            work and had been similarly disabled since the onset of 
 
            symptoms on September 27, 1989.  Dr. Boulden maintained 
 
            claimant in a conservative treatment program including 
 
            physical therapy and projected a functional capacities 
 
            evaluation.
 
            
 
                 On February 19, 1990, claimant's functional capacity 
 
            evaluation was performed and claimant finished the 
 
            stabilization program designed by Dr. Boulden.  Dr. Boulden 
 
            reported that claimant had achieved maximum medical 
 
            improvement.  He classified claimant as being capable of 
 
            work in the light-to-medium category.  He stated that 
 
            claimant's work should not involve prolonged standing or 
 
            sitting and that claimant should avoid repetitive bending or 
 
            twisting of his back.  Those restrictions would effectively 
 
            prohibit the claimant from working as an over-the-road truck 
 
            driver, from performing automobile repair work or from 
 
            working as a mover in the moving and storage business.  Dr. 
 
            Boulden assigned a seven percent disability rating under the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            AMA guidelines (exhibit 2, page 5).  On March 15, 1990, Dr. 
 
            Boulden confirmed that the claimant's restrictions and 
 
            disability were related to the October [sic] 27, 1989 injury 
 
            (exhibit 2, page 6).
 
            
 
                 The assessment of this case made by Dr. Boulden is 
 
            accepted as being correct.  Dr. Boulden provided the most 
 
            extensive, effective treatment of William Wesley.  Further, 
 
            Dr. Boulden is an orthopaedic surgeon with more expertise in 
 
            the field of back injury than that which the record shows to 
 
            be held by the other physicians who treated the claimant.
 
            
 
                 Wesley obtained employment with Gordon's Wholesale on 
 
            or about April 1, 1990.  He drives an Isuzu van and delivers 
 
            food and other merchandise to gas stations and convenience 
 
            stores.  The job initially was part-time, but eventually 
 
            became full-time.  He makes 20-25 deliveries per day, works 
 
            four days per week and is currently paid $6.35 per hour.  He 
 
            handles weights which are commonly in the range of 10-25 
 
            pounds, but on occasion may lift as much as 50 pounds.  He 
 
            drives approximately 200 miles per day.  At hearing, Wesley 
 
            estimated his gross weekly earnings to be in the range of 
 
            $350-$375, including overtime pay.  Exhibit 4 shows 
 
            claimant's earnings during the last 26 weeks to have 
 
            averaged $308.66 per week gross earnings, an amount 
 
            significantly less than the estimate voiced by claimant at 
 
            the time of hearing.  The records contained in exhibit 4 of 
 
            actual pay are found to be more accurate than claimant's 
 
            verbally expressed estimate.
 
            
 
                 It is found that Wesley's current employment is quite 
 
            appropriate in view of his age, education, general 
 
            qualifications and physical condition.  It accurately 
 
            reflects his earning capacity.
 
            
 
                 In obtaining treatment for his back injury, claimant 
 
            incurred expenses for physical therapy with Manual Therapy 
 
            Center in the amount of $717.00 and also incurred expenses 
 
            for treatment with Central Iowa Orthopaedics in the amount 
 
            of $277.00 (exhibits 1 and 2).
 
            
 
                 At the time Wesley requested additional medical 
 
            treatment, immediately prior to commencing treatment with 
 
            Dr. Boulden, his request was denied.  The only physician 
 
            whom the company had authorized to treat the claimant had 
 
            released him to return to work.  That assessment of the case 
 
            was incorrect.  The assessment made by Dr. Boulden has been 
 
            previously found to be correct.  The employer was given an 
 
            opportunity to provide services, but declined to do so.  The 
 
            arrangements which claimant made for obtaining care with Dr. 
 
            Boulden were suitable and appropriate.  The employer failed 
 
            to provide reasonable treatment.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be addressed is claimant's medical 
 
            expenses with Central Iowa Orthopaedics.  Based upon the 
 
            findings previously made regarding the employer's failure to 
 
            provide adequate treatment, the claimant was fully entitled 
 
            to seek treatment on his own, particularly since that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            treatment was effective.  Richards v. Dep't of Gen. Servs., 
 
            Vol. 1, No. 3, State of Iowa Industrial Commissioner 
 
            Decisions 684 (App. Decn. 1985); 2 Larson Workmen's 
 
            Compensation Law, sections 61.12(a) and (e).  Further, at 
 
            the time claimant commenced treatment with Dr. Boulden, the 
 
            employer was denying liability for the claimant's condition.  
 
            This constitutes a waiver by the employer of its right to 
 
            direct or control the care.  Barnhart v. MAQ, Inc., I Iowa 
 
            Industrial Commissioner Report 16 (App. Decn. 1981).  
 
            Defendants are therefore responsible for payment of 
 
            claimant's medical expenses with Manual Therapy Center in 
 
            the amount of $717.00 and Central Iowa Orthopaedics in the 
 
            amount of $277.00 together with any increase in those 
 
            charges which has resulted from the lack of timely payment.
 
            
 
                 An injured employee is entitled to recover healing 
 
            period compensation until the first of the three events in 
 
            Code section 85.38(2) which end the healing period 
 
            entitlement.  In this case, it has previously been found 
 
            that Dr. Boulden's assessment of the case is correct.  It 
 
            was on February 19, 1990 that Dr. Boulden stated that 
 
            claimant had reached maximum medical improvement.  That date 
 
            also marked the end of the active treatment which Dr. 
 
            Boulden had provided.  Since claimant had not previously 
 
            returned to work or been identified as having recovered to 
 
            the extent that he was able to engage in substantially the 
 
            same employment as he had been performing at the time of the 
 
            injury, the healing period is ended by maximum medical 
 
            improvement.  Claimant's entitlement to healing period 
 
            compensation therefore runs from the date of injury, 
 
            September 27, 1989, through February 19, 1990, a span of 20 
 
            and 6/7 weeks.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson 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 
 
            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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 Claimant's actual earnings have been reduced from 
 
            approximately $500 per week to approximately $300 per week 
 
            in view of his change in occupations.  The restrictions 
 
            recommended by Dr. Boulden would effectively eliminate 
 
            claimant from over-the-road truck driving due to the 
 
            prolonged sitting which is involved in that occupation.  
 
            Even if the employer had not terminated claimant's 
 
            employment, he would still be unable to resume that line of 
 
            work with the defendant employer or any other trucking 
 
            company.  While much of claimant's reduction in weekly 
 
            income is attributable to the fact that he is working less 
 
            hours, it is also recognized that the injury has made him 
 
            unable to perform the type of work in which he was given the 
 
            opportunity to work extended hours each week.  Claimant's 
 
            current earnings involve a considerable amount of overtime 
 
            pay.  Claimant is able to perform his present job and it 
 
            does not appear to significantly aggravate his back.  It is 
 
            a very appropriate employment situation which accurately 
 
            reflects claimant's actual earning capacity.  It is noted 
 
            that an over-the-road truck driver incurs a number of 
 
            personal expenses for meals and the like which are not 
 
            incurred with claimant's current employment.  When all the 
 
            pertinent factors of industrial disability are considered, 
 
            it is determined that William A. Wesley experienced a 25 
 
            percent reduction in his earning capacity as a result of the 
 
            September 27, 1989 injury.  This entitles him to recover 125 
 
            weeks of permanent partial disability compensation payable 
 
            commencing February 20, 1990 under the provisions of Code 
 
            section 85.34(2)(u).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay William A. 
 
            Wesley twenty and six-sevenths (20 6/7) weeks of 
 
            compensation for healing period at the rate of three hundred 
 
            three and 02/100 dollars ($303.02) per week payable 
 
            commencing September 27, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay William A. 
 
            Wesley one hundred twenty-five (125) weeks of compensation 
 
            for permanent partial disability at the rate of three 
 
            hundred three and 02/100 dollars ($303.02) per week payable 
 
            commencing February 20, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants are given credit 
 
            for all weekly compensation previously paid and shall pay 
 
            the unpaid accrued balance in a lump sum together with 
 
            interest pursuant to section 85.30 of The Code computed on 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the accrued unpaid amount from the date each weekly payment 
 
            came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant's 
 
            medical expenses as follows:
 
            
 
                 Manual Therapy Center             $  717.00
 
                 Central Iowa Orthopaedics            277.00
 
                 Total                                994.00
 
            
 
                 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. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Joseph S. Cortese II
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                           5-1802; 5-1803; 2501
 
                           Filed March 25, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM A. WESLEY,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 930620
 
                      :
 
            HIGHWAY CARRIER/    :      A R B I T R A T I O N
 
            ACE TRUCK LINES,    :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            2501
 
            Claimant injured his back, was treated by the employer's 
 
            physician and released.  Claimant was still symptomatic and 
 
            sought treatment on his own, after his request for further 
 
            treatment had been denied by the carrier.  Claimant's own 
 
            chosen orthopaedic surgeon was found to have correctly 
 
            assessed the case.  It was found that the employer had 
 
            failed to provide adequate care.  The employer's defense of 
 
            lack of authorization failed.  The claimant recovered all 
 
            his treatment expenses.
 
            
 
            5-1802; 5-1803
 
            The assessment by claimant's physician was found to be 
 
            correct as far as ending healing period when claimant 
 
            reached maximum improvement rather than when he had been 
 
            released previously.  Fifty-four-year-old truck driver, 
 
            whose injuries precluded him from resuming over-the-road 
 
            truck driving, the occupation he was engaged in at the time 
 
            of injury, was awarded 25 percent permanent partial 
 
            disability.  Actual reduction in earnings was approximately 
 
            40 percent, but claimant worked less hours in the new 
 
            employment and did not incur travel expenses in the new 
 
            employment.