BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         CRAIG GARDNER,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 931180
 
         POURED WALLS OF IOWA, INC.,   :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         WEST BEND MUTUAL INSURANCE    :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
              I.  Did the deputy err in determining claimant 
 
              sustained an injury arising out of and in the course of 
 
              his employment on November 27, 1989?
 
         
 
              II.  Did the deputy err in determining claimant's 
 
              periods of temporary total disability were causally 
 
              connected to his alleged work injury?
 
         
 
              III.  Did the deputy err in awarding section 85.27 
 
              medical expenses?
 
         
 
              IV.  Did the deputy err in awarding section 86.13 
 
              benefits?
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed August 14, 1991 are adopted as final agency 
 
         action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed August 14, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              *****
 
         
 
              [A threshold issue is whether claimant has suffered an 
 
         injury arising out of and in the course of his employment.  
 
         Claimant's evidence consists of his own testimony that he 
 
         stumbled while carrying a heavy concrete form.  Claimant's 
 
         alleged accident was corroborated by the testimony of Gary Osten.  
 
         However, Osten's testimony was submitted by affidavit only.  
 
         Defendants did not have the opportunity to cross-examine Gary 
 
         Osten during the making of this affidavit.  The affidavit bears 
 
         little weight.
 
         
 
              Gary Osten also testified by deposition.  The deposition was 
 
         excluded by the deputy.  A review of the deposition shows that it 
 
         adds little substance to the contents of the affidavit.  Osten 
 
         basically relates the same incident testified to by claimant.
 
         
 
              The evidence offered by the defendants shows that claimant 
 
         and Gary Osten were friends as well as co-employees.  The 
 
         evidence shows that claimant had worked for defendant only a few 
 
         days when he was allegedly injured.  One of defendants' witnesses 
 
         testified that claimant reported to her that he had in fact 
 
         injured himself over the weekend off the job:
 
         
 
              Q.  What was said on that Monday, November 27th, 1989, 
 
              to you by Craig Gardner?
 
         
 
                   MR. JOHNSON:  Excuse me, I object.  This calls for 
 
              hearsay testimony on the part of this witness, and 
 
              there's no -- Well, that would be my objection.
 
         
 
                   INDUSTRIAL COMMISSIONER:  Hearsay may come in in 
 
              administrative proceedings pursuant to 17(A).  
 
              Therefore I will allow this witness to answer the 
 
              question.
 
         
 
              A.  Okay.  He stopped in and he wanted to pick up his 
 
              payroll check because he said he hurt his ankle over 
 
              the weekend, and he tried working that morning and he 
 
              said it was -- it was hurting too bad and he said he 
 
              would probably be off for two weeks -- a couple days, 
 
              I'm sorry, two days.  And at the time my husband said, 
 
              well, call first because we probably won't need you 
 
              because we hired these guys just to do a job we had to 
 
              get done right away.  They were extras.
 
         
 
         (Transcript page 41, lines 4-23)
 
         
 
              There was hearsay testimony that claimant had made similar 
 
         statements to other employees.  There was also testimony that the 
 
         holes claimant said he stepped into at the time of his injury did 
 
         not exist.  Significantly, claimant also asked his foreman, Dan 
 
         Hopkins, if the employer carried workers' compensation insurance 
 
         shortly before the alleged injury occurred.
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              Q.  Did you have a conversation with Craig Gardner 
 
              early in the morning of November 27th, 1989, that 
 
              Monday?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  And what was that conversation about?
 
         
 
              A.  He asked me in the morning if we carried workmen's 
 
              comp, and I told him yes, we did, and I'm sure -- To 
 
              the best of my knowledge, that's the extent of that 
 
              conversation.  I thought it was kind of odd, but . . .
 
         
 
         (Tr. p. 55, ll. 9-18)
 
         
 
              In addition, after the alleged injury the claimant did not 
 
         report the injury to the foreman, but instead left the job site 
 
         with Gary Osten and went to Gary Osten's apartment where he 
 
         states he tried to contact the employer by telephone.
 
         
 
              Taken as a whole, claimant has failed to carry his burden of 
 
         proof to show that he has suffered an injury arising out of and 
 
         in the course of his employment.  The greater weight of the 
 
         evidence shows that claimant's condition is due to a non-work 
 
         injury.
 
         
 
              Claimant's credibility on the issue of whether his condition 
 
         was caused by an injury on the job is directly contradicted by 
 
         the statement that he initially reported that this ankle injury 
 
         occurred off the job over the prior weekend, and by his inquiry 
 
         of his foreman whether the company had workers' compensation 
 
         insurance a few hours before the alleged incident.  Although the 
 
         hearsay statements of fellow employees that claimant also told 
 
         them he hurt his ankle over the weekend are admissible, they can 
 
         only be given very limited weight and the conclusion that 
 
         claimant is not credible on this issue does not rely on those 
 
         statements.]
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                              
 
         
 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant shall pay the costs of the appeal including 
 
         the transcription of the hearing.
 
         
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. Richard Johnson 
 
         Attorney at Law
 
         P O Box 607
 
         1715 First Ave SE
 
         Cedar Rapids  IA  52406
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         Davenport  IA  52801
 
         
 
 
            
 
 
 
 
 
           
 
 
 
                                                2906
 
                                                Filed May 26, 1993
 
                                                BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CRAIG GARDNER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931180
 
            POURED WALLS OF IOWA, INC.,   :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2906
 
            
 
            Claimant alleged he was injured when he stumbled carrying a 
 
            concrete form at a construction site.  However, the evidence 
 
            showed that claimant had only worked for defendant a few 
 
            days; on the day of the alleged injury, a Monday, claimant 
 
            told the office supervisor he had injured his ankle over the 
 
            weekend; the morning of the alleged injury, claimant asked 
 
            the foreman if the company had workers' compensation 
 
            insurance; claimant did not report the alleged injury to the 
 
            on-site foreman, but instead left the work-site and went to 
 
            the home of a friend and co-worker.  Claimant found on 
 
            appeal to not be credible.  No benefits awarded.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         CRAIG GARDNER,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 931180
 
         POURED WALLS OF IOWA, INC.,   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         WEST BEND MUTUAL INSURANCE    :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Craig Gardner, against his employer, Poured Walls of 
 
         Iowa, Inc., and its insurance carrier, West Bend Mutual Insurance 
 
         Company, defendants.  The case was heard on February 15, 1991, at 
 
         the Linn County Courthouse in Cedar Rapids, Iowa.  The record 
 
         consists of the testimony of claimant (Claimant's Exhibit 1).  
 
         The record also consists of the testimonies of Joan Musil and Dan 
 
         Hopkins.  Additionally, the record consists of exhibits A-LL, OO, 
 
         QQ-ZZ.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether claimant 
 
         received an injury which arose out of and in the course of 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; 3) whether claimant is enti
 
         tled to temporary disability/healing period benefits or permanent 
 
         partial disability benefits; 4) whether claimant is entitled to 
 
         penalty benefits pursuant to section 86.13(4); and, 5) whether 
 
         claimant is entitled to medical benefits pursuant to section 
 
         85.27.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant testified by deposition.  He was incarcerated in 
 
         the Linn County Jail on the date of the hearing.  Consequently, 
 
         the undersigned was unable to observe the demeanor of claimant.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant commenced his employment with defendant on or about 
 
         November 22, 1989.  He was hired as a laborer for defendant 
 
         employer.  Claimant's varied duties included carrying concrete 
 
         forms, pouring concrete and setting up forms.  For his services, 
 
         claimant was paid an hourly rate of $8.00 per hour.
 
         
 
              On the morning of November 27, 1989, claimant, while work
 
         ing, was carrying concrete forms from one location to another.  
 
         The concrete forms were very heavy.  Claimant was working with a 
 
         co-employee, Gary Osten.  They were jointly carrying the forms.  
 
         Claimant stepped into a hole which was covered by straw.  He 
 
         twisted forward and the form he was carrying partially fell on 
 
         him.  Claimant was able to remove the form.  Immediately, he felt 
 
         a pain in his back.  Claimant left the job site with Mr. Osten 
 
         during the morning break.  Claimant did not return to the job 
 
         site.  He received his final paycheck on November 29, 1989.  
 
         Claimant only worked a total of three and one half days for 
 
         defendant employer.
 
         
 
              On November 30, 1989, claimant sought medical treatment for 
 
         his back from Yang Ahn, M.D., claimant's personal physician.  Dr. 
 
         Ahn's notes reflect the following:
 
         
 
                   11-30-89   On Monday 11/27/89
 
                    Carrying the form at work
 
                         Stepped on the hole
 
                         ...
 
                         Dx : L L-5 strain
 
         
 
              Dr. Ahn prescribed medication and bed rest.  He later 
 
         referred claimant to Lawrence Strathman, M.D., an orthopedic 
 
         surgeon.  Dr. Strathman admitted claimant to St. Luke's Hospital 
 
         where claimant was placed in traction.  In his report of December 
 
         29, 1989, Dr. Strathman noted that a scan revealed some bulging 
 
         of the S-l disk but that claimant had no neurologic deficit, just 
 
         pain.  Claimant was discharged on December 20, 1989, with the 
 
         following instructions:
 
         
 
              Follow pamphlet for back pain
 
              No bending stoop with legs as needed.  No heavy lifting.
 
              Sit for only short periods
 
              Any questions or concerns call Doctors [sic] office              
 
         immediately
 
         
 
              Dr. Strathman released claimant to return to work on 
 
         February 21, 1990.  The physician opined there was no permanent 
 
         impairment at that time.
 
         
 
              Subsequent to his release to return to work, claimant sought 
 
         chiropractic care from David W. Johnson, D.C.  After treating 
 
         claimant for a period of time, Dr. Johnson was unable to deter
 
         mine an impairment rating for claimant.
 
         
 
              In July of 1990, claimant entered St. Luke's Hospital for a 
 
         second hospital stay.  He was not working at the time.  Claimant 
 
         was treated by Albert R. Coates, M.D.  Again only conservative 
 
         care was prescribed.  X-rays revealed a negative exam.
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Dr. Strathman opined in a report dated December 4, 1990:
 
         
 
              Since our last report, this gentleman was again seen 
 
              August 2, 1990.  He reported to the emergency room com
 
              plaining of severe back pain and was hospitalized by 
 
              Dr. Coates and followed by the writer.  He responded to 
 
              supportive measures and was seen in the office for 
 
              follow-up on August 2, 1990.
 
         
 
              At this time his examination showed that he was signif
 
              icantly overweight.  There was some tightness in his 
 
              low back but no neurologic deficit.  He was encouraged 
 
              to continue with his exercises and is to work on a gen
 
              eral conditioning program and he should use his garment 
 
              p.r.n.
 
         
 
              I do not find record that further x-rays were taken at 
 
              that time.
 
         
 
              His diagnosis was acute and chronic low back strain and 
 
              his prognosis was good to guarded.
 
         
 
              At the time of the August 2 visit I felt that it was 
 
              all right for him to return to work, no restrictions 
 
              were imposed, no surgery was anticipated, and no perma
 
              nent impairment was assessed or seemed indicated.
 
         
 
              As of September 18, 1990, claimant was incarcerated in the 
 
         Linn County Jail for a matter unrelated to this proceeding.
 
         
 
                                conclusions of law
 
         
 
              The first issue to address is whether claimant has sustained 
 
         an injury which arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 27, 1989, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
         
 
              The words "in the course of" refer to the time and place and 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may rea
 
         sonably be, and while he is doing his work or something inciden
 
         tal to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 
 
         298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 
 
         261 Iowa 352, 154 N.W.2d 128 (1967). 
 
         
 
              Claimant has proven that he has sustained a work related 
 
         injury to his back on November 27, 1989.  Claimant's rendition of 
 
         the incident is credible.  The history which he has provided to 
 
         all medical practitioners is consistent.  There is the affidavit 
 
         from Gary Osten.  His affidavit (Ex. UU) corroborates the testi
 
         mony of claimant.  The affidavit is consistent with the testimony 
 
         of claimant.
 
         
 
              The next issue to address is whether there is a causal rela
 
         tionship between claimant's alleged condition and the work 
 
         related injury.
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 27, 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 (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 disabil
 
         ity that is aggravated, accelerated, worsened or lighted up so 
 
         that it results in disability, claimant is entitled to recover.  
 
         Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 
 
         815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensa
 
         tion sec. 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting condi
 
         tion.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 
 
         35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 266 
 
         N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              There is no question claimant has had reoccurring back prob
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         lems since he was in the Marines.  Claimant had also fallen from 
 
         a ladder and injured his back in 1978.  He had experienced inter
 
         mittent muscle spasms in the low back area, especially if he 
 
         attempted to lift weights.  Prior to the work injury, claimant 
 
         had experienced a flare-up in November of 1988.  Other than that, 
 
         claimant had been symptom free.  Therefore, it is the determina
 
         tion of the undersigned that claimant has established the requi
 
         site causal connection.
 
         
 
              Claimant has not proven that he has sustained a permanent 
 
         partial disability.  No medical practitioner has rated claimant 
 
         as having a permanent impairment.  As of August 2, 1990, claimant 
 
         was able to return to work without restrictions.  No surgery or 
 
         additional treatment was anticipated by the orthopedic surgeon.  
 
         Claimant has not sustained any permanency.
 
         
 
              Claimant did incur a temporary total disability.  The par
 
         ties have stipulated that the requisite weeks are from November 
 
         27, 1989 to February 21, 1990, 12.429 weeks, and from July 17, 
 
         1990 to August 2, 1990, 2.429 weeks.  Claimant is entitled to 
 
         benefits for the aforementioned periods.
 
         
 
              The next issue deals with section 86.13 penalty benefits.  
 
         Claimant seeks additional compensation under the fourth unnum
 
         bered paragraph of section 86.13.
 
         
 
              Section 86.13 of the Iowa Code provides in relevant portion:
 
         
 
              If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, 
 
              the industrial commissioner shall award benefits in 
 
              addition to those benefits payable under this chapter, 
 
              or chapter 85, 85A, or 85B, up to fifty percent of the 
 
              amount of benefits that were unreasonably delayed or 
 
              denied.
 
         
 
              This same issue was addressed by Deputy Industrial Commis
 
         sioner Michael Trier in the case of Parker v. Johnsrud Transport 
 
         Inc., File Nos. 894148, 894149 (Arbitration Decision filed on May 
 
         15, 1990).  In his decision, Deputy Trier wrote:
 
         
 
              Claimant seeks to recover additional compensation under 
 
              the fourth unnumbered paragraph of Code section 86.13.  
 
              Chapter 85 of The Code makes employers responsible for 
 
              payment of compensation for all injuries which arise 
 
              out of and in the course of employment.  Chapter 87 
 
              requires all employers to carry liability insurance, or 
 
              qualify as a self-insured, in order to guarantee suffi
 
              cient solvency to pay the weekly benefits as the same 
 
              come due under Chapter 85.  As no weekly compensation 
 
              was awarded for the February 5, 1988 injury, there is 
 
              no need to discuss the reasonableness of the denial of 
 
              payment of compensation for that injury.  The October 
 
              28, 1988 injury, however, produced an extended period 
 
              of healing period and some permanent disability.  A 
 
              dispute between which of an employer's two insurance 
 
              carriers is liable is not a lawful defense to a claim 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              for benefits under Chapter 85.  In fact, section 85.21 
 
              provides a method by which such disputes can be prop
 
              erly litigated and determined without delaying or deny
 
              ing an otherwise valid claim for workers' compensation 
 
              benefits.  There is no requirement for any insurance 
 
              carrier to make use of section 85.21.  But, when the 
 
              only bona fide, justicifiable [sic] dispute in a case 
 
              is to determine which of an employer's two carriers is 
 
              responsible for paying, it is very appropriate to make 
 
              use of section 85.21.  The law places the liability for 
 
              payment on the employer.  The primary roles of the 
 
              insurer are to act as the employer's representative for 
 
              administering and paying the claim as well as a guaran
 
              tee of solvency.  When the only bona fide dispute in a 
 
              case is that of which of an employer's two carriers is 
 
              liable for payment, it is a classic, textbook example 
 
              of a situation in which the imposition of a penalty 
 
              under section 86.13(4) is fully warranted.  Failure to 
 
              pay a claim is unreasonable unless the validity of the 
 
              claim is fairly debatable.  Dolan v. Aid Ins. Co., 431 
 
              N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. v. Labor & 
 
              Indus. Review Comm'n, 405 N.W.2d 685 (Wisc. App. 1987); 
 
              Anderson v. Continental Ins. Co., 27l N.W.2d 368, 376 
 
              (Wisc. 1978).  In this case, there was no reasonable 
 
              basis for denying Calvin Parker's claim for healing 
 
              period compensation following the October 28, 1988 
 
              injury.  An additional 12 weeks of compensation is 
 
              therefore awarded for the unreasonable denial of the 
 
              claim....
 
         
 
              Penalty benefits were also recently discussed in the appeal 
 
         decision of Weishaar v. Snap-On Tools Corporation, (File Nos. 
 
         847903, 848681, 848682, Filed June 28, 1991).  In the aforemen
 
         tioned cases, the industrial commissioner held that defendants 
 
         reasonably delayed payment of benefits representing an alleged 
 
         shoulder condition since there was a bona fide dispute as to that 
 
         injury, but that defendants unreasonably withheld benefits repre
 
         senting a bilateral carpal tunnel condition which was not in dis
 
         pute.  The industrial commissioner also went on to say that 
 
         defendants cannot withheld clearly compensable benefits as a 
 
         lever to force settlement on disputed aspects of a case.
 
         
 
              In the case at hand, it was not unreasonable for defendants 
 
         to delay the payment of benefits, initially.  Claimant was a new 
 
         employee and defendants' foreman had no actual knowledge of the 
 
         incident.  Claimant was unable to notify his foreman immediately 
 
         after the incident occurred.  However, as of January 5, 1990, 
 
         defendants were presented with an affidavit for Craig Osten, an 
 
         eyewitness to the incident.  It was at this point that defendants 
 
         unreasonably delayed payment of claimant's temporary total dis
 
         ability benefits.
 
         
 
              It is the decision of this deputy that claimant is entitled 
 
         to 50 percent of the stipulated weekly benefit rate ($206.92 : 
 
         .50 = $103.46) from January 6, 1990 to February 21, 1990 and from 
 
         July 17, 1990 to August 2, 1990.  This encompasses a period of 
 
         9.143 weeks.
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The final issue to address is whether claimant is entitled 
 
         to medical benefits pursuant to section 85.27.  This section 
 
         provides in relevant portion:
 
         
 
              The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgi
 
              cal, medical, dental, osteopathic, chiropractic, podi
 
              atric, physical rehabilitation, nursing ambulance and 
 
              hospital services and supplies therefor and shall allow 
 
              reasonably necessary transportation expenses incurred 
 
              for such services.  The employer shall also furnish 
 
              reasonable and necessary crutches, artificial members 
 
              and appliances but shall not be required to furnish 
 
              more than one set of permanent prosthetic devices.
 
         
 
                  ...
 
         
 
              For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.  
 
              The treatment must be offered promptly and be reason
 
              ably suited to treat the injury without undue inconve
 
              nience to the employee.  If the employee has reason to 
 
              be dissatisfied with the care offered, the employee 
 
              should communicate the basis of such dissatisfaction to 
 
              the employer, in writing if requested, following which 
 
              the employer and the employee may agree to alternate 
 
              care reasonably suited to treat the injury.  If the 
 
              employer and employee cannot agree on such alternate 
 
              care, the commissioner may, upon application and rea
 
              sonable proofs of the necessity therefor, allow and 
 
              order other care.  In an emergency, the employee may 
 
              choose the employee's  care at the employer's expense, 
 
              provided the employer or the employer's agent cannot be 
 
              reached immediately.
 
         
 
              This division has held that it is inconsistent to deny lia
 
         bility and the obligation to furnish care on one hand, and at the 
 
         same time, to claim a right to choose the care.  Therefore, a 
 
         denial of liability precludes an employer from selecting the med
 
         ical care.  Lewis E. Jones v. R. M. Boggs Company, Inc., File No. 
 
         655193 (Arbitration Decision - July 22, 1986); Kindhart v. Fort 
 
         Des Moines Hotel, (Appeal Decision, March 27, 1985); Barnhart v. 
 
         MAQ Incorporated, I Iowa Industrial Commissioner Report 16 
 
         (Appeal Decision 1981).
 
         
 
              The following medical expenses which have been incurred by 
 
         claimant are causally related to claimant's work injury of 
 
         November 27, 1989:
 
         
 
         
 
         1.  St. Luke's Hospital (Admission 12-14-89)         $2,608.20
 
         
 
         2.  Iowa Musculoskeletal Center                         465.00
 
         
 
         3.  MediCenter West                                     150.00
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         4.  St. Luke's Hospital (admission 7-18-90/7-20-90)   1,044.85
 
         
 
         5.  David C. Johnson, D.C.                              288.00
 
         
 
                                            Total             $4,556.05
 
         
 
              
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay temporary total disability benefits at 
 
         the stipulated rate of two hundred six and 92/l00 dollars 
 
         ($206.92) per week from November 27, 1989 to February 21, 1990 
 
         and from July 17, 1990 to August 2, 1990, a period of fourteen 
 
         point eight-five-eight (14.858) weeks.
 
         
 
              Defendants are to pay penalty benefits at fifty percent 
 
         (50%) of two hundred six and 92/l00 dollars ($206.92) or one 
 
         hundred three and 46/l00 dollars ($103.46) from January 6, 1990 
 
         to February 21, 1990 and from July 17, 1990 to August 2, 1990, a 
 
         period of nine point one-four-three (9.143) weeks.
 
         
 
              Defendants are liable for medical expenses as aforementioned 
 
         in the amount of four thousand five hundred fifty-six and 05/l00 
 
         dollars ($4,556.05).
 
         
 
              Costs of this action are assessed to defendants pursuant to 
 
         rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
              Signed and filed this ____ day of August, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. Richard Johnson 
 
         Attorney at Law
 
         P O Box 607
 
         1715 First Ave SE
 
         Cedar Rapids  IA  52406
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Davenport  IA  52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801
 
                           Filed August 14, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CRAIG GARDNER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931180
 
            POURED WALLS OF IOWA, INC.,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1801
 
            Claimant was awarded temporary total disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH J. FINKEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 931182
 
            vs.                           :
 
                                          :
 
            DIXON CONSTRUCTION CO.,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Keith J. Finken, against Dixon Construction 
 
            Co., employer, and The Travelers Insurance Company, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury which occurred 
 
            gradually and continued through July 23, 1988.
 
            
 
                 A hearing was held on November 28, 1990, in Council 
 
            Bluffs, Iowa.  Briefs were to be filed by defendants on 
 
            December 15, 1990, and by claimant on January 11, 1991.  The 
 
            case was considered fully submitted at that time.
 
            
 
                 The record in this case consists of the testimony of 
 
            claimant and joint exhibits 1 through 8.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on November 28, 1990, the parties stipulated 
 
            that an employer-employee relationship existed between the 
 
            claimant and defendants at the time of the alleged injury on 
 
            July 22, 1988; that the type of permanent disability, if the 
 
            injury is found to be a cause of permanent disability, is a 
 
            scheduled member disability to both hands; and, in the event 
 
            of an award of weekly benefits, the rate of compensation is 
 
            $180.88 per week.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The prehearing report identified the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained a gradual injury ending 
 
            on July 23, 1988 which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            claimant's alleged injury and the disability on which he now 
 
            bases his claim; and,
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and all 
 
            the evidence contained in the exhibits, and makes the 
 
            following findings.
 
            
 
                 Claimant was born on February 2, 1961 and is a high 
 
            school graduate.  Prior to April 1988, claimant worked as a 
 
            roofer for six years, sold insurance for about a year and a 
 
            half and worked at an elevator driving a truck for about 
 
            four months.  On April 25, 1988, he was hired by Dixon 
 
            Construction Co. to assist in the construction of concrete 
 
            highway culverts.   The project was completed on July 22, 
 
            1988 and his employment was terminated on that same date.  
 
            He then collected unemployment for approximately two months.  
 
            
 
                 Mr Finken's job duties for Dixon Construction involved 
 
            setting forms, installing steel reinforcement rods, pouring 
 
            concrete and removing forms.  Mr. Finken testified that he 
 
            worked between 8 to 12 hours a day depending upon the 
 
            weather.  The work involved extensive use of the hands, 
 
            wrists and arms.  Approximately five weeks later claimant 
 
            alleged began to feel pain in his wrists and forearms and 
 
            had numbness in his fingers which would awaken him at night.  
 
            Claimant testified he never experienced this type of pain 
 
            before.  On the last day of his employment with Dixon 
 
            Construction, claimant made an appointment to see Leonard E. 
 
            Weber, M.D., a neurologist.  He testified he was not 
 
            claiming he lost any time from work because of this injury.
 
            
 
                 Sometime in September 1988, he went to work for 
 
            Rasmussen Lumber Company as a carpenter until April 1990 
 
            when he went to work as a carpenter for MFT Construction 
 
            Company where he is still employed.  Lastly, claimant 
 
            testified that, other than diagnostic tests, he has had no 
 
            surgical treatment involving his hands or arms.  He stated 
 
            that his condition has improved somewhat since changing jobs 
 
            but that his hands are still numb at night although not to 
 
            the extent of severity as when he worked for Dixon.
 
            
 
                 The medical evidence of record reveals that claimant 
 
            was seen by Len Weber, M.D., on July 22, 1988 for complaints 
 
            of wrist and forearm discomfort and episodic hand numbness, 
 
            of two months duration.  EMG and nerve conduction testing 
 
            was performed and, according to Dr. Weber, showed "moderate 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ongoing injury to the myelin of the median nerves within the 
 
            carpal tunnels bilaterally, a bit worse on the left than the 
 
            right." (Joint Exhibit 1, pages 1-4)
 
            
 
                 In a letter to the claimant dated November 8, 1988, Dr. 
 
            Weber stated that "The most common way an individual who 
 
            uses his hands a lot in daily activities gets carpal tunnel 
 
            is by the use of hands in those daily activities." (Jt. Ex. 
 
            2)  However, he rendered no opinion as to whether his carpal 
 
            tunnel was job related.
 
            
 
                 On November 30, 1988, the claimant referred himself to 
 
            Richard O. Forsman, M.D.  An examination revealed tenderness 
 
            to palpation over the median nerve on the wrists bilaterally 
 
            with pain up into the lower arm.  No weakness was detected 
 
            in either arm and his physical exam was basically normal. 
 
            (Jt. Ex. 4)
 
            
 
                 On July 20, 1989, claimant was initially evaluated by 
 
            James P. O'Hara, M.D., an orthopedic surgeon.  He 
 
            recommended repeat EMG and nerve conduction studies which 
 
            were performed on August 18, 1989.
 
            
 
                 According to Dr. Weber, the EMG findings in July 1989 
 
            showed bilateral median sensory nerve injuries within the 
 
            carpal tunnels moderate in degree, the right and left sides 
 
            being equally involved.  This represented some improvement 
 
            in the degree of myelin injury to the motor portion of the 
 
            median nerves in the carpal tunnels but essentially no 
 
            change in the degree of myelin injury to the sensory 
 
            portions of the median nerves in the carpal tunnels, 
 
            compared with previous testing in July 1988.  (Jt. Ex. 3, 
 
            pp. 1-4)
 
            
 
                 In a follow-up evaluation with Dr. O'Hara on September 
 
            22, 1989, claimant had no complaints of significant pain.  
 
            Dr. O'Hara interpreted claimant's EMG's as showing a 
 
            subsiding of his symptoms.  It was his impression that 
 
            claimant "has a 10 percent impairment of both hands because 
 
            of residual symptoms." (Ex. 7)  Based on claimant's 
 
            description of his medical history, Dr. O'Hara related 
 
            claimant's impairment to his prior occupation with Dixon 
 
            Construction.  He advised him to avoid repetitive lifting or 
 
            jobs that involve repetitive flexion and supination of the 
 
            wrists (Ex. 7).
 
            
 
                                CONCLUSIONS of law
 
            
 
                 The first issue to be determined is whether claimant 
 
            has received an injury which arose out of and in the course 
 
            of his employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he sustained a gradual injury on July 
 
            23, 1988 which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 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 
 
            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, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 After carefully reviewing the total evidence in this 
 
            case, the undersigned concludes that claimant has not proved 
 
            by a preponderance of the evidence that he received an 
 
            injury which arose out of and in the course of his 
 
            employment with Dixon Construction Company.
 
            
 
                 The claimant testified that approximately five weeks 
 
            into work he began to experience pain and numbness in his 
 
            arms, hands and forearms (Transcript, page 17).  However, he 
 
            made no mention of this to his employer at any time in the 
 
            course of his employment and lost no time from work due to 
 
            his complaints.  He did not seek medical treatment until 
 
            July 22, 1988, after his employment with Dixon had 
 
            terminated.  At that time, he was seen by Dr. Weber, a 
 
            neurologist.  EMG and nerve conduction studies were 
 
            performed.  Although test results revealed moderate ongoing 
 
            injury to the myelin of the median nerves within the carpal 
 
            tunnels bilaterally, Dr. Weber offered no opinion as to 
 
            causal connection between claimant's impairment and his work 
 
            activity at Dixon.
 
            
 
                 From July 22, 1988 through sometime in September 1988 
 
            (claimant could not be more specific), claimant received 
 
            unemployment compensation benefits.  He held himself out as 
 
            ready, willing and able to work.  In September 1988, he went 
 
            to work for Rasmussen Lumber Company as a carpenter.  In 
 
            November 1988, he saw Dr. Forsman and complained of carpal 
 
            tunnel syndrome which he related to his prior work with 
 
            Dixon.  Office notes state:  "He had no problems or symptoms 
 
            with reference to this, prior to the present job where he is 
 
            working construction, doing repetitive arm-twisting motions 
 
            involving the wrist and elbow." (Ex. 4)
 
            
 
                 Claimant worked for Rasmussen for two years and in 
 
            April 1990 began his present carpenter job with MFT 
 
            Construction Company.  Repeat EMG studies were performed on 
 
            August 18, 1989, and showed mild improvement since July 
 
            1988.  Dr. O'Hara opined on October 2, 1989, that claimant's 
 
            bilateral carpal tunnel syndromes had improved (Ex. 7).  
 
            Claimant has had no surgical treatment for his problem and 
 
            has worked consistently since September 1988 in occupations 
 
            requiring the repetitive use of his hands.  While he has 
 
            some mild residual symptoms, the undersigned is unconvinced 
 
            that his problems are related to his employment with Dixon 
 
            Construction Company.  Claimant has a significant prior work 
 
            history as a roofer and laborer, in which he was required to 
 
            use his upper extremities.  He did not relate this work 
 
            history to Drs. Weber, Forsman and O'Hara and focused only 
 
            on his three month tenure with Dixon.  Therefore, their 
 
            opinions as to causality was based on incomplete medical 
 
            history.
 
            
 
                 There is a possibility that claimant's work activities 
 
            may have caused his carpal tunnel symptoms.  However, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant must prove not merely a possibility but a 
 
            probability.  Dr. O'Hara's impairment rating was made more 
 
            than a year after claimant completed his employment with 
 
            Dixon.  It is based primarily on claimant's recitations of 
 
            his three month work history at Dixon's.  Claimant appears 
 
            not to have detailed the work requirements of his roofer job 
 
            to any of his examining physicians.  In any event, based on 
 
            the total evidence in this case, claimant has not proved by 
 
            a preponderance of the evidence that he sustained an injury 
 
            which arose out of and in the course of his employment with 
 
            Dixon Construction Company.
 
            
 
                 Accordingly, all other issues are moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs of these proceedings are taxed equally to 
 
            claimant and defendants.
 
            
 
                 Signed and filed this _____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Richard C Schenck
 
            Attorney at Law
 
            711 Court St
 
            P O Box 509
 
            Harlan IA 51537
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Mr James E Thorn
 
            Attorney at Law
 
            Second Flr - Northwestern Bell Bldg
 
            310 Kanesville Blvd
 
            P O Box 398
 
            Council Bluffs IA 51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1100
 
                      Filed February 6, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH J. FINKEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 931182
 
            vs.                           :
 
                                          :
 
            DIXON CONSTRUCTION CO.,       :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100
 
            Claimant, a construction worker, alleged a gradual work 
 
            injury arising out of and in the course of his employment.  
 
            He had no complaints while on the job and the same day that 
 
            his work contract with the company ended, he went to a 
 
            physician with complaints and pain and numbness in his arms, 
 
            hands and forearms.  He lost no time from work.  He received 
 
            unemployment compensation benefits for two months thereafter 
 
            and afterwards worked as a carpenter for two construction 
 
            companies.  He is still employed in that capacity.
 
            Claimant failed to prove his injury arose out of and in the 
 
            course of his employment.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 4000
 
                                          Filed April 7, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            C. LEROY PLACE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 931185
 
                                          :                891539
 
            GIESE CONSTRUCTION COMPANY,   :
 
            INC.,                         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 68 years old at the time of the injury to his 
 
            shoulder, was awarded 25 percent industrial disability.  
 
            Claimant had worked as a dragline operator and his age was 
 
            not a barrier to that employment.  Claimant worked in the 
 
            construction industry all of his life.  Claimant had high 
 
            school education and had previously retired before he took 
 
            the job where his injury occurred.  Claimant was employed at 
 
            the time of the hearing and had not fully explored the 
 
            competitive labor market.  Claimant was not an odd-lot 
 
            employee.
 
            
 
            4000
 
            Claimant argued that language from Tussing v. Hormel & Co., 
 
            461 N.W.2d 450, 452 (Iowa 1990) regarding voluntary payments 
 
            warranted the imposition of penalties.  The argument was 
 
            rejected on the facts of this case and the conclusion that 
 
            the Supreme Court did not intend to eviscerate the meaning 
 
            of Iowa Code section 86.13 regarding voluntary payments.  
 
            Penalty benefits were not awarded since claim was fairly 
 
            debatable during most of 1989.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            DEAN MENSHING,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931190
 
            BALTZELL AGRI PRODUCTS, INC.,:
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 8, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Defendants and claimant shall share the costs of the appeal 
 
            equally, including the preparation of the hearing 
 
            transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Roger Sawatzke
 
            Attorney at Law
 
            P.O. Box 248
 
            Council Bluffs, Iowa 51502-0248
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 5ll02
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 19, 1991
 
                                          BYRON K. ORTON
 
                                          MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN MENSHING,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931190
 
            BALTZELL AGRI PRODUCTS, INC., :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            8, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN MENSCHING,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  931190
 
            BALTZELL AGRI PRODUCTS, INC., :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dean 
 
            Mensching as a result of injuries to his back which occurred 
 
            on January 9, 1990.  Defendants denied compensability for 
 
            the injury, paid weekly benefits and paid medical expenses.
 
            
 
                 The case was heard and fully submitted at Council 
 
            Bluffs, Iowa, on January 8, 1991.  The record in the 
 
            proceeding consists of joint exhibits 1 through 10, 
 
            claimant's exhibit 11, testimony from claimant and James R. 
 
            Lippincott.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Arising out of and in the course of employment;
 
            
 
                 2.  Entitlement to temporary total disability or 
 
            healing period and causal connection;
 
            
 
                 3.  Entitlement to permanent partial disability and 
 
            causal connection; and
 
            
 
                 4.  Commencement date for permanent partial disability
 
            
 
                 A stipulation was made at the time of hearing 
 
            concerning disputed medical benefits.  Defendants stipulated 
 
            that unpaid medical expenses listed in exhibit 4 will be 
 
            paid, thereby rendering the Iowa Code section 85.27 issue 
 
            moot.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            following findings of fact are made:
 
            
 
                 Claimant, Dean Mensching, now age 35, is a resident of 
 
            Pisgah, Iowa, a very small community some 50 miles northeast 
 
            of Council Bluffs, Iowa.  
 
            
 
                 Claimant graduated from high school in 1975 with a C 
 
            average.  Claimant did not pursue further schooling after 
 
            graduation.  
 
            
 
                 Claimant's first job after high school was as a heavy 
 
            labor production worker in a sheet metal fabrication 
 
            factory.  He held that job for about two years and was paid 
 
            $4 per hour.
 
            
 
                 Claimant then moved to Portland, Oregon, and worked as 
 
            a production worker in a rubber molding factory.  He held 
 
            this heavy labor job for three and one-half years.  His 
 
            ending wage was about $5 to $6 per hour.
 
            
 
                 Claimant then went to work in Omaha, Nebraska, as a 
 
            fabric pattern cutter in an office furniture factory.  
 
            Claimant performed this work for seven years.  He testified 
 
            that his position required lifting of up to 80 to 100 pounds 
 
            some 10 to 15 times per day.  Claimant was earning $6.60 per 
 
            hour when he was laid off work in June 1988. 
 
            
 
                 Claimant then worked as a laborer for a furniture 
 
            assembler for one month at $4.75 per hour before suffering 
 
            another layoff.
 
            
 
                 Claimant then applied for and was offered a job with 
 
            employer Baltzell Agri Products at the rate of $4.75 per 
 
            hour.  He started work on January 9, 1990, as a stacker.  In 
 
            that position he was required to take 50-pound bags of 
 
            animal feed products from a conveyor and stack them on a 
 
            pallet.  The conveyor belt was knee high while the pallet 
 
            was about one foot above floor level.  Claimant spent most 
 
            of his first day of work performing the stacking job.  
 
            Exhibit 11 indicates that claimant worked 8.5 hours on 
 
            January 9, 1990.
 
            
 
                 Claimant stated that it was his responsibility to carry 
 
            new pallets to his work station.  He testified that the 
 
            pallets weighed 70 to 100 pounds.  Late in the work day, as 
 
            claimant was moving a pallet closer to his work station, he 
 
            felt a sharp pain in his low back with pain extending down 
 
            his legs into the balls of his feet.  He finished the last 
 
            hour of his shift notwithstanding the continued low back 
 
            pain.
 
            
 
                 Claimant testified that this was one of the most 
 
            physically demanding jobs he had ever performed.  Claimant 
 
            had been out of work for over one year prior to January 9, 
 
            1990.
 
            
 
                 The back pain was still present on January 10, 1990.  
 
            Claimant called employer and informed Jim Lippincott that he 
 
            had hurt his back and couldn't work.  Lippincott, who was 
 
            employer's director of operations, asked claimant if he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            wanted to apply for workers' compensation.
 
            
 
                 On January 11, 1990, claimant's back pain was still 
 
            present.  He went to see Lippincott so as to apply for 
 
            workers' compensation.  In the process, claimant filled out 
 
            a voluntary termination of employment form which purports to 
 
            extinguish any claim against employer, exhibit 3.  Claimant 
 
            testified that he completed exhibit 3 so as to apply for 
 
            workers' compensation as opposed to releasing any claims.
 
            
 
                 Claimant sought treatment from Gene Ranney, D.C., 
 
            beginning January 15, 1990 through January 19, 1990, with 
 
            approval of the employer.
 
            
 
                 Claimant reported that the treatments did not improve 
 
            his back pain.  Dr. Ranney wrote on January 19, 1990, that 
 
            claimant reported his low back is better and claimant had 
 
            much less difficulty getting on the therapy table, exhibit 
 
            5, page 8.
 
            
 
                 Claimant was then directed to see Daniel Larose, M.D., 
 
            by the insurance carrier.  Claimant saw Dr. Larose for 
 
            treatment beginning February 6, 1990 through April 3, 1990.
 
            
 
                 Dr. Larose diagnosed claimant's condition as lumbar 
 
            strain and prescribed rest, physical therapy and medication, 
 
            ex. 6.  A light-duty work release was issued by Dr. Larose 
 
            on March 6, 1990, ex. 6, pp. 4 & 5.  Dr. Larose noted a 
 
            normal examination and lack of objective findings on March 
 
            6, 1990, ex. 6, p. 4.
 
            
 
                 Claimant testified that he last saw Dr. Larose on April 
 
            3, 1990, and that his back pain had not resolved.  Dr. 
 
            Larose opined on April 3, 1990, that claimant was ready to 
 
            return to work and that there was no objective evidence of 
 
            any problem, ex. 6, pp. 6 & 7.
 
            
 
                 Claimant sought a second opinion with Dr. Larose's 
 
            approval.  Claimant selected Charles Taylon, M.D., for his 
 
            second opinion.  The evaluation took place on May 7, 1990.  
 
            Dr. Taylon reported that claimant sustained a 
 
            musculoligamentous injury to his low back.  He further 
 
            reported that maximum medical improvement had been achieved 
 
            assuming that the MRI test came back as normal, ex. 1, p. 1.  
 
            The MRI scan revealed no significant abnormality, ex. 2.  It 
 
            should be noted that Dr. Taylon did not know how much of 
 
            claimant's problem was physical as opposed to mental, ex. 1, 
 
            pp. 1 & 2.  Dr. Taylon gave claimant a choice of returning 
 
            to work without work restrictions or to accept a 25 pound 
 
            lifting restriction with no repetitive bending and a 1 
 
            percent body as a whole permanent partial disability rating, 
 
            ex. 1, p. 2.
 
            
 
                 On December 20, 1990, Dr. Taylon stated that the back 
 
            injury and resulting disability and restrictions were caused 
 
            by the January 1, 1990 work-related incident of lifting 
 
            bags, ex. 1, p. 4.
 
            
 
                 Claimant testified that he felt his back condition 
 
            reached maximum medical improvement in August 1990.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 At the time of hearing, claimant testified that he 
 
            still had back pain which limited his ability to bend, squat 
 
            and walk.  It was observed by the undersigned that during 
 
            claimant's testimony and while at the counsel table, 
 
            claimant sat motionless.  He did not move about, shift in 
 
            his chair or show any sign of discomfort during the three 
 
            hour hearing.  
 
            
 
                 Claimant stated that he had not worked since January 9, 
 
            1990.  Claimant, through his attorney, did request work from 
 
            employer, but none was offered.  He testified the he had 
 
            conducted a job search in the Pisgah, Iowa, area, but had 
 
            not applied for work through Job Service.  Claimant has been 
 
            unable to find job openings in the Pisgah, Iowa, area.  
 
            Claimant may move to the Council Bluffs, Iowa, area so as to 
 
            expand the potential job market.
 
            
 
                 James R. Lippincott testified that he has worked for 
 
            employer as director of operations since August 28, 1987.  
 
            He has no ownership interest in the company and does not 
 
            receive a bonus based upon production.  Lippincott's 
 
            testimony is found to be credible.
 
            
 
                 Lippincott testified that wood pallets used by employer 
 
            generally weigh between 40 and 60 pounds with an average of 
 
            55 pounds.  He also stated that 20 tons of material would be 
 
            processed daily on the line worked by claimant.  This would 
 
            break down to 800 bags per day or about 100 bags per hour 
 
            which must be stacked onto a pallet.
 
            
 
                 The first issue to be resolved is whether claimant 
 
            incurred an injury on January 9, 1990, arising out of and in 
 
            the course of employment.
 
            
 
                 Claimant's statement that he hurt his back while 
 
            working as a bag stacker on January 9, 1990, was essentially 
 
            uncontroverted.  Several inconsistent medical notes were 
 
            revealed.  However, both versions recited back problems 
 
            which originated at work on January 9, 1990.  It was also 
 
            shown that claimant had experienced prior occasional back 
 
            pain.  However, no prior medical treatment was revealed.
 
            
 
                 It is found that claimant has proven by a preponderance 
 
            of the evidence that he sustained an injury to his back on 
 
            January 9, 1990, arising out of and in the course of 
 
            employment with employer.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period and the causal connection to the work injury 
 
            of January 9, 1990.
 
            
 
                 Claimant testified that he was unable to perform work 
 
            beginning January 10, 1990, as a result of the injury of 
 
            January 9, 1990.  Dr. Larose, the treating physician, 
 
            released claimant to light duty on March 6, 1990.  Employer 
 
            failed to make suitable light duty work available pursuant 
 
            to Iowa Code section 85.33(3).  Therefore, the healing 
 
            period does not end on March 6, 1990.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 On April 3, 1990, claimant was released to return to 
 
            work by Dr. Larose without any restrictions being stated.  
 
            Claimant's testimony that he was unable to work on April 3, 
 
            1990, was not substantiated by medical evidence.  Dr. 
 
            Larose's work release of April 3, 1990, was therefore, not 
 
            disputed by any other medical provider.
 
            
 
                 It is found that claimant's healing period ended on 
 
            April 3, 1990, as that date coincides with his unrestricted 
 
            release to work by the treating physician.
 
            
 
                 The casual connection of the healing period to the 
 
            January 9, 1990, injury was proven based upon the testimony 
 
            of claimant and a review of the medical records.  It was not 
 
            disputed that starting January 10, 1990 through April 3, 
 
            1990, claimant was treating for low back pain.  Having found 
 
            that the low back injury is the result of the January 9, 
 
            1990 injury, the causal connection of the healing period to 
 
            the January 9, 1990 injury is found.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            permanent partial disability and the causal connection to 
 
            the work injury.
 
            
 
                 Dr. Taylon gave the opinion that the work-related 
 
            injury of January 9, 1990, caused a 1 percent permanent 
 
            partial disability to the body as a whole.  Contrary medical 
 
            opinions were not offered.  It is found that claimant's 
 
            January 9, 1990, injury is a cause of permanent partial 
 
            disability.
 
            
 
                 The extent of entitlement to permanent partial 
 
            disability is the next issue to be resolved.  It was 
 
            stipulated that the injury is to be evaluated industrially.
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include, claimant's age, education, experience, 
 
            medical work restrictions, impairment motivation and 
 
            employer's offer of work.
 
            
 
                 Claimant, now age 35, is a high school graduate with a 
 
            work history composed primarily of medium to heavy manual 
 
            labor with no specialized training.
 
            
 
                 The work restrictions imposed by Dr. Taylon would 
 
            restrict claimant from performing the jobs which he has held 
 
            in the past.  
 
            
 
                 These facts tend to weigh in favor of increasing 
 
            industrial disability.  However, the work restrictions are 
 
            to a certain extent self-imposed as demonstrated by Dr. 
 
            Taylon's letter of May 7, 1990, ex. 1, p. 1.  It is also 
 
            noted that the examinations performed by Dr. Taylon failed 
 
            to reveal significant objective findings.  Dr. Larose was of 
 
            the opinion that, as of his last examination, claimant 
 
            lacked objective findings.  It is found that the work 
 
            restrictions imposed by Dr. Taylon are primarily the result 
 
            of subjective complaints of pain. 
 
            
 
                 Only one permanent partial impairment rating was issued 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            by a medical doctor in this case.  Dr. Taylon rated the 
 
            disability at 1 percent which indicates an insignificant 
 
            impairment.  The MRI scan also failed to reveal any 
 
            significant abnormality related to the low back complaints, 
 
            ex. 1, p. 3 and ex. 2.  These facts tend to decrease 
 
            industrial disability.
 
            
 
                 In this case, employer failed to offer work or 
 
            vocational rehabilitation after claimant was discharged from 
 
            medical care.  This fact tends to increase industrial 
 
            disability.  
 
            
 
                 Claimant's motivation to return to work is also a 
 
            factor to be considered.  In this case, claimant was 
 
            unemployed for over a year prior to his injury of January 9, 
 
            1990.  Claimant was finally able to locate employment in the 
 
            Council Bluffs, Iowa, area in January 1990.  After discharge 
 
            from medical care he limited his job search to the Pisgah, 
 
            Iowa, community as opposed to Council Bluffs.  Claimant, to 
 
            date of hearing, had failed to return to Council Bluffs to 
 
            look for work notwithstanding the fact that no jobs were 
 
            available in the Pisgah area.
 
            
 
                 It is found that claimant was not motivated to return 
 
            to work as evidenced by his limiting a job search to the 
 
            Pisgah area and by failing to apply for work at job service.  
 
            This fact weighs against a finding of industrial disability.
 
            
 
                 Having considered all of the evidence presented it is 
 
            found that claimant sustained a 10 percent industrial 
 
            disability caused by the January 9, 1990 work-related injury 
 
            to his low back.
 
            
 
                 The commencement date for payment of permanent partial 
 
            disability is found to be April 4, 1990, which coincides 
 
            with the end of the healing period.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 9, 
 
            1990, 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he sustained an injury to his low back arising out of 
 
            and in the course of employment with employer on January 9, 
 
            1990.
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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).  The end of the healing period occurs at the 
 
            time when the physicians indicate that no further 
 
            improvement is forthcoming.  It is not determined by 
 
            hindsight looking back to find the point at which recovery 
 
            ceased.  Thomas v. William Knudson & Son, Inc., 394 N.W.2d 
 
            124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. 
 
            Kubli, 312 N.W.2d 60 (Iowa App. 1981).
 
            
 
                 The end of the healing period occurs at the time when 
 
            the physicians indicate that no further improvement is 
 
            forthcoming.  It is not determined by hindsight looking back 
 
            to find the point at which recovery ceased.  Thomas, 394 
 
            N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber 
 
            Co., 312 N.W.2d 60 (Iowa App. 1981).
 
            
 
                 Claimant established his burden in proving entitlement 
 
            to healing period benefits beginning January 10, 1990 
 
            through April 3, 1990.  Causal connection of the disability 
 
            to the January 9, 1990, injury was established by means of 
 
            testimony and medical reports.
 
            
 
                 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 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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).  In Parr v. Nash Finch 
 
            Co., (appeal decision, October 31, 1980) the industrial 
 
            commissioner, after analyzing the decisions of McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith 
 
            v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated:
 
            
 
                 Although the court stated that they were looking 
 
                 for the reduction in earning capacity it is 
 
                 undeniable that it was the "loss of earnings" 
 
                 caused by the job transfer for reasons related to 
 
                 the injury that the court was indicating justified 
 
                 a finding of "industrial disability."  Therefore, 
 
                 if a worker is placed in a position by his 
 
                 employer after an injury to the body as a whole 
 
                 and because of the injury which results in an 
 
                 actual reduction in earning, it would appear this 
 
                 would justify an award of industrial disability.  
 
                 This would appear to be so even if the worker's 
 
                 "capacity" to earn has not been diminished.
 
            
 
                   For example, a defendant employer's refusal to give 
 
            any sort of work to a claimant after he suffers his 
 
            affliction may justify an award of disability.  McSpadden, 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Upon considering all the material factors it is found 
 
            that the evidence in this case supports an award of 10 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 50 weeks of benefits under Iowa Code 
 
            section 85.34(2)"u".  Claimant has proven the causal 
 
            connection of the permanent partial disability to the 
 
            January 9, 1990, injury based upon Dr. Taylon's medical 
 
            records and claimant's testimony.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)"u" provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Having found that the healing period benefits end on 
 
            April 3, 1990, it follows that claimant has carried his 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            burden in proving April 4, 1990, as commencement date for 
 
            permanent partial disability benefits.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 IT THEREFORE IS ORDERED:
 
            
 
                 Defendants are to pay claimant twelve (12) weeks of 
 
            healing period benefits at the rate of one hundred twenty 
 
            one and 18/100 dollars ($121.18) for the period January 10, 
 
            1990 through April 3, 1990.
 
            
 
                 Defendants are to pay claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred twenty-one and 18/100 dollars ($121.18) per week 
 
            commencing April 4, 1990.
 
            
 
                 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 February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Roger Sawatzke
 
            Attorney at Law
 
            25 Main Place, STE 200
 
            PO Box 248
 
            Council Bluffs, Iowa  50512-0248
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51100 51800 51803
 
                      Filed February 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN MENSCHING,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  931190
 
            BALTZELL AGRI PRODUCTS, INC., :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100 51802
 
            Claimant injured his low back when lifting 50-pound bags at 
 
            work and was found entitled to healing period benefits.
 
            
 
            51803
 
            Claimant, at age 35, with a 1 percent impairment rating and 
 
            25-pound lifting restriction found 10 percent industrially 
 
            disabled.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD R. QUINONES,       
 
                        
 
                 Claimant,                  File Nos. 839079/931306
 
                                                      930911
 
            vs.         
 
                                                   A P P E A L
 
            ALUMINUM COMPANY OF AMERICA,    
 
                                                 D E C I S I O N
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed April 23, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas N. Kamp
 
            Ms. Carole J. Anderson
 
            Attorneys at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            P.O. Box 339
 
            Davenport, Iowa 52805-0339
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed September 29, 1992
 
                                             Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD R. QUINONES,       
 
                        
 
                 Claimant,                   File Nos. 839079/931306
 
                                                       930911
 
            vs.         
 
                                                   A P P E A L
 
            ALUMINUM COMPANY OF AMERICA,    
 
                                                D E C I S I O N
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 23, 
 
            1991.