BEFORE THE IOWA INDUSTRIAL COMMISSIONER                                       
 
           ____________________________________________________________
 
                                         :
 
           PAULA N. GLANN,               :
 
                                         :
 
                Claimant,                :
 
                                         :
 
           vs.                           :
 
                                         :      File No. 939135
 
           JOHN MORRELL & COMPANY,       :
 
                                         :    A R B I T R A T I O N
 
                Employer,                :
 
                                         :      D E C I S I O N
 
           and                           :
 
                                         :
 
           NATIONAL UNION FIRE           :
 
           INSURANCE COMPANY,            :
 
                                         :
 
                Insurance Carrier,       :
 
                Defendants.              :
 
           ___________________________________________________________
 
           
 
                On May 14, 1992, Paula N. Glann (claimant) filed a
 
           petition for arbitration as a result of an injury to
 
           claimant's back occurring on April 4, 1990.  John Morrell &
 
           Company (John Morrell) was identified as employer and
 
           National Union Fire Insurance Company was identified as the
 
           workers compensation insurer for John Morrell (collectively
 
           defendants).  On August 30, 1991 these matters came on for
 
           hearing in Sioux City, Iowa.  The parties appeared as
 
           follows:  the claimant in person and by her counsel Harry
 
           Smith of Sioux City Iowa and John Morrell and National Union
 
           Fire Insurance Company by their counsel Thomas M. Plaza of
 
           Sioux City, Iowa.
 
           
 
                The record in this proceeding consisted of the
 
           following:
 
           1.  The live testimony of the claimant, Michael Hanson, and
 
           Donna Johnson.
 
           2.  Joint exhibits 1-54
 
           3.  Claimant's exhibits A-O.
 
           4.  Defendants' exhibit A.
 
                                       
 
                                  STIPULATIONS
 
           
 
                The parties stipulated to the following matters at the
 
           time of the hearing:
 
           a.  An employer-employee relationship existed between
 
           claimant and employer at the time of the alleged injury.
 

 
           
 
           GLANN V. JOHN MORRELL & CO.
 
           Page   2
 
           
 
           b.  The time off work is stipulated to be April 6, 1990 to
 
           April 23, 1990 April 26, 1990 to October 22, 1990 and from
 
           November 14, 1990 onward.
 
           c.  The type of permanent disability, if the injury is found
 
           to be a cause of permanent disability, is industrial
 
           disability to the body as a whole.
 
           d.  The rate of compensation, in the event of an award, is
 
           $208.53 per week based on a gross weekly wage of $306.72 per
 
            week.  At the time of the injury, claimant was married and
 
           had two children and one child in vitro.  Claimant is
 
           entitled to four exemptions.
 
           e.  If the service providers was called to testify, the
 
           providers would testify that the fees were reasonable and
 
           defendants are not offering contrary evidence.
 
           f.  The amount of costs is stipulated to be $65.00.
 
                                       
 
                                     ISSUES
 
           
 
                The issues for resolution are as follows:
 
           
 
                1.  Whether claimant sustained an injury on April 4,
 
           1990 which arose out of and in the course of her employment
 
           with John Morrell.
 
           
 
                2.  Whether a causal relationship exists between
 
           claimant's claimed injuries and the claimed disability and
 
           the nature and extent of any entitlement to benefits, if
 
           any.
 
                3.  Whether claimant is entitled to medical benefits,
 
           including a determination of causal connection to the work
 
           injury and the causal connection of this condition to a work
 
           injury.
 
                                       
 
                               FINDINGS OF FACT
 
           
 
                After considering all of the evidence and the arguments
 
           of counsel, the undersigned makes the following findings of
 
           fact and conclusions of law.
 
           
 
                1.  At the time of the hearing, claimant was 26 years
 
           old.  She is left hand dominant.  Claimant is a deaf mute.
 
           She graduated from the Iowa School for the Deaf in 1984. She
 
           then attended Iowa Western Community College for one year
 
           and studied general basic skills.  That course work was not
 
           completed.  She left that endeavor and began to work for
 
           Aalfs as a presser.  Claimant voluntarily left her position
 
           with Aalfs and accepted employment with John Morrell in
 
           October of 1989.  Prior to starting her work at John
 
           Morrell, claimant had a physical examination by the plant
 
           nurse which was normal.
 

 
           
 
           GLANN V. JOHN MORRELL & CO.
 
           Page   3
 
           
 
           
 
                2.  Claimant's job at John Morrell was in the
 
           chitterlings area.  In this area, chitterlings are thrown on
 
           a table one at a time and the worker takes the chitterling
 
           and feeds it through a pipe which then goes through a
 
           machine.  The worker behind the machine takes the fat off
 
           the chitterling and throws it into a barrel of ice.  The
 
           bulk of the work involves manipulating the chitterlings
 
           rather than moving barrels of ice.  The chitterlings each
 
           weigh about half of a pound.  Generally when the
 
           chitterlings are retrieved from the ice barrel, a worker
 
           picks up a hand full that weighs between 10-20 pounds.  This
 
           position is considered a light duty position at the John
 
           Morrell plant.  The job also involves bending and twisting
 
           frequently to retrieve and deposit the chitterlings in the
 
           appropriate place.  The barrels of meat, ice and water are
 
           also moved by the workers, however this is not a regular
 
           part of the duties for workers in this area of the plant.
 
           The barrels are generally not full.  The barrels are pushed,
 
           they are not picked up or lifted.
 
           
 
                3.  On the evening of April 4, 1990, claimant was 
 
           working in the chitterling area.  Sometime toward the end of
 
           her shift, claimant had a nose bleed.  When the nose bleed
 
           occurred, claimant left her work station and went to the
 
           nurse's office.  When claimant reported to the nurse's
 
           station she did not make any complaint that her back was
 
           bothering her from the work that she had performed during
 
           her shift.  Claimant had been moving barrels and twisting
 
           and bending while she did her work prior to her nose bleed.
 
           Claimant had been doing these activities for approximately
 
           two weeks prior to April 4, 1990.  When claimant woke up the
 
           next morning, she could not get out of bed due to pain in
 
           her back.  Claimant was three months pregnant at the time of
 
           this incident.  During her previous pregnancies, claimant
 
           had a sore back.  Claimant had also complained of a sore
 
           back in February of 1990 due to her pregnancy.
 
           
 
                4.  Claimant's description of the mechanics of her
 
           injury has changed with the passage of time.  At the time of
 
           the injury, claimant indicated that her back pain was
 
           attributable to her pregnancy.  Then she thought it was
 
           attributable to bending and twisting at work.  Claimant
 
           indicated on April 6, 1990 that her back was sore upon
 
           waking up on April 5, 1990.  This description was given
 
           until sometime in later 1990 and 1991 when claimant changed
 
           the mechanics of the injury to a lifting incident at work.
 
           Then the lifting incident became a lift of a 100 pound
 
           barrel filled with meat, ice and water.  The following
 
           excerpts from the evidence demonstrates these
 
           inconsistencies:
 

 
           
 
           GLANN V. JOHN MORRELL & CO.
 
           Page   4
 
           
 
           April 5, 1990
 
              
 
                   Yesterday my nose were a little bleed late night
 
              closed to finish work.  Probably from dry and this
 
              early am when I get up it's sore in lower back close to
 
              my tailbone from baby lay too low pressure on it my
 
              doctor they advised me to take a good shower try use
 
              heating pad and lay down on the left side and rest. 
 
              But I couldn't miss work so I come in work I will do it
 
              when I get home from work tonight I might will need
 
              aspirin from relief of pain and pressure in back area
 
              later tonight.
 
              
 
              (Defendants Exhibit A, Page 35)
 
              April 6, 1990
 
              
 
                 2 days ago slight nose bleed here did taken blood
 
              pressure was fine + normal.
 
              
 
                 Yesterday, in early am I barely get up & when I sit
 
              or walk its painful thought baby lay too low it's
 
              pressure on my lower back it just happen.
 
              
 
                 Maybe from work bend too much but I don't know yet
 
              just happen.
 
              
 
              (Deft. Ex. A, P. 39).
 
              Interrogatory testimony:
 
              
 
                 At work, almost at the end of the shift, I got a
 
              nose bleed.  The next day, I woke up and my back ached
 
              and from that day on, it is still there.  It doesn't go
 
              away.
 
              That night, I was working--standing, bending and moving
 
              alot on chitterling.  The base job is to pick up
 
              barrels of meat, replace ice and exchange barrels and
 
              remove fat.
 
              
 
              Deposition testimony:
 
              
 
                 Q.  Am I correct that the first time you had back
 
              pains was when you had that nose bleed?
 
              
 
                 A.  At first at night when it was close to the time
 
              when we would be quitting work, I would say we finish
 
              about 12, 12:10, in early morning, we--off work at 1,
 
              and I had a nose bleed and I felt a little bit dizzy so
 
              the nurse did check my blood pressure and she said it
 
              seemed okay, so I went back to work after my nose quit
 
              bleeding, and then the very next morning I could barely
 
              
 
              
 
           GLANN V. JOHN MORRELL & CO.
 
           Page   5
 
           
 
              get up out of bed because my back started hurting and
 
              that's-- that's when it started, when I had woke up the
 
              next morning.
 
              
 
                   Hearing testimony:
 
              
 
                 Claimant was asked at 
 
              
 
              the hearing what happened to cause her back to hurt. 
 
              Claimant responded by saying that she was lifting
 
              barrels that were full of meat and doing all the
 
              scraping.  Claimant's nose started to bleed when she
 
              was lifting barrels.  There was a  lot of moving
 
              around, and bending.  Claimant thought that the barrels
 
              she lifted weighed in excess 100 pounds.  After
 
              claimant went home after her shift, she did not feel
 
              well throughout the night and when she began to get out
 
              of bed the next morning, she couldn't get out bed
 
              because her back hurt so much.
 
              
 
              (Transcript pp 18-20).
 
              
 
                   5.  Claimant saw Frederick J. Lohr, M.D., in connection
 
              with her back complaint.  Claimant gave a history to Dr.
 
              Lohr of a nose bleed on April 4, 1990 at work and low back
 
              pain the next morning.  Upon examination, Dr. Lohr found
 
              tenderness in the area of the upper lumbar spine and he
 
              diagnosed acute low back strain.  On April 9, when claimant
 
              was seen again, Dr. Lohr took her off work because she had
 
              not had any relief from her back pain.
 
              
 
                   6.  Claimant was seen again by Dr. Lohr on April 12,
 
              April 26 and May 1, 1990.  Claimant continued to complain of
 
              back pain.  Finally, on May 1, 1990, Dr. Lohr indicated that
 
              claimant needed maternity leave because of her back problem. 
 
              He indicated at that time that claimant's continuing back
 
              complaints were due to the pregnancy and the type of work
 
              she was doing for John Morrell.
 
                   7.  In defendant's exhibit A, at page 43, there is a
 
              note that indicates that John Morrell believed that claimant
 
              had injured herself at work.  The note is undated.  The
 
              writer indicated:  "We have to send you to our doctor
 
              because this was caused at work.  Just forget about the fact
 
              that you forgot to report on time.  Next time you'll know
 
              better."
 
              
 
                   8.  On April 23, 1990, claimant had another series of
 
              note exchanges with the John Morrell nurses regarding the
 
              condition of her back and the cause of her ongoing pain. 
 
              Claimant wrote:
 

 
              
 
              GLANN V. JOHN MORRELL & CO.
 
               6ge òòò
 
              
 
              
 
              
 
              Don't know what it caused Dr can't take an x-ray till
 
              after baby born cuz it will probably damage fetus and I
 
              still wear brace & elastic wrap it up.  They can't do
 
              as much because I am preg only bed & rest 2 wks it
 
              little improvement but still wear elastic wrap to
 
              support my back.
 
              
 
              (Defts. Ex. A, pp. 27-28).
 
              
 
                   9.  On April 26, 1990, Dr. Lohr reported to John
 
              Morrell in a telephone call that claimant's back problems
 
              were not related to her work.  His office indicated that she
 
              would be off for two weeks and then be rechecked by him. 
 
              With that information, John Morrell advised claimant that it
 
              considered her back complaints unrelated to her work
 
              activities.  On an undated note, the nurse wrote,  "I pretty
 
              much have to go by what doctor told us, he said he didn't
 
              think this is work related.  Claimant replied,  "I will find
 
              out as it still don't go away I knew it's from work it done
 
              by heavy and bends tell me how come I had uternal sound test
 
              it shows none strains from preg & baby's fine. (Defts. Ex.
 
              A)
 
              
 
                   10.  Claimant was seen on May 20, 1990, by D. Miedema
 
              M. D. complaining of right lower quadrant pain.  At the time
 
              of this examination, claimant made no complaint or mention
 
              of ongoing back pain during her visit.  Her only pain
 
              compaints were attributable to her pregnancy.
 
              
 
                   11.  Claimant was next examined by John J. Dougherty,
 
              M.D.  In a letter dated May 30, 1990 he observed that taking
 
              a history from claimant prior to the examination had been
 
              difficult due to her hearing and speaking impairment.  Dr.
 
              Dougherty asked claimant if she had ever hurt herself and
 
              her response was no. (Ex. 27)  Dr. Dougherty reviewed the
 
              findings of Dr. Lohr as part of the examination.  Dr.
 
              Dougherty concluded that claimant had a chronic strain in
 
              her back as a result of the pregnancy and her work.  He
 
              believed that her back strain was due primarily to her
 
              pregnancy and not her work.  Dr. Dougherty was willing to
 
              release her to return to work but restricted the amount of
 
              bending and twisting she did in her work.
 
              
 
                   12.  On June 20, 1990, claimant was examined by Dean M.
 
              Spartz, M.D.  He felt that claimant's back ache was a strain
 
              secondary to pregnancy.  He did not find anything else wrong
 
              with her.  He recommended a pregnancy support sling but
 
              claimant had indicated that did not help.  Then he
 
              recommended an orthopedic consult.
 
              
 

 
              
 
              GLANN V. JOHN MORRELL & CO.
 
               7ge òòò
 
              
 
              
 
                   13.  On June 26, 1990, claimant was examined by Jay T.
 
              Strittholt, M. D. regarding her low back pain. She reported
 
              that she had no past history of any back injury.  Claimant
 
              described a lifting injury at work. Claimant was six months
 
              pregnant at the time of this examination.  After
 
              examination, Dr. Strittholt concluded that claimant's injury
 
              may represent a muscle strain and transient osteoporosis but
 
              no further diagnosis was made due to claimant's pregnancy.
 
              
 
                   14.  On October 11, 1990, Dr. Strittholt saw  claimant
 
              again.  Claimant delivered her baby in September.  Dr.
 
              Strittholt noted that claimant was still having significant
 
              low back pain but that her hip pain had diminished markedly. 
 
              Dr. Strittholt indicated that claimant still had tenderness
 
              directly over the coccyx posteriorly and the pain increased
 
              with any movement.  Claimant had a bone scan and an MRI
 
              study done of her sacrum and lumbar spine and all of those
 
              studies were normal.  After the exam on October 19, 1990,
 
              Dr. Strittholt concluded that claimant had trochanter pain
 
              consistent with trochanteric bursitis. He prescribed
 
              nonsteroidal medication which seemed to improve her pain. 
 
              Claimant was seen again in November complaining of pain in
 
              her low back and left hip. After the examination, Dr.
 
              Strittholt noted that all of claimant's x-ray studies and
 
              MRI scans were normal for her hip and back.  Dr. Strittholt
 
              was at a loss to explain any of her continued symptoms.  He
 
              recommended that claimant re-contact Dr. Lohr for referral
 
              for second opinion.
 
              
 
                   15.  On December 5, 1990, Dr. Lohr directed a letter to
 
              claimant's attorney indicating that claimant's pain
 
              complaint was not responding to his treatment nor was it a
 
              condition that Dr. Strittholt could alleviate.  Dr. Lohr did
 
              not know what was causing claimant's pain.  Dr. Lohr
 
              believed that there might be some psychological involvement
 
              with this pain.  He based this observation on the fact that
 
              claimant had three small childern at home.  Dr. Lohr thought
 
              that this environment contributed to claimant's
 
              preoccupation with pain and contributed to symptom
 
              magnification of her pain.  He noted that he felt claimant's
 
              pain was real but he was at a loss as to what a diagnosis
 
              for the pain was.
 
              
 
                   16.  On January 9, 1991, claimant was examined by
 
              Robert R. Sundell, M.D. for a neurological evaluation
 
              involving her low back, left buttock and left hip pain. 
 
              Claimant gave a history of working at John Morrell and a lot
 
              of bending and lifting in her job.  Claimant told Dr.
 
              Sundell that she was pregnant when her pain complaints began
 
              and the pain had not abated after her delivery.  Upon
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
               8ge òòò
 
              
 
              
 
              examination, Dr. Sundell believed that claimant's
 
              neurological examination was consistent with the left S1
 
              radiculopathy caused by a herniated disc. Dr. Sundell
 
              believed claimant needed a myelogram to determine whether
 
              there was a herniated disc causing nerve root compression. 
 
              If the myelogram was positive, then he would recommend
 
              surgery to repair the disc. With regard as to the question
 
              whether claimant's repetitious job duties at John Morrell
 
              caused an aggravation to her condition, it was his opinion
 
              that bending and lifting as the patient described commonly
 
              is associated with the development of herniated disc and
 
              subsequent radiculopathy.
 
              
 
                   17.  On January 25, 1991, claimant was examined by 
 
              Ralph F. Reeder, M.D.  Claimant gave a history that in April
 
              1990, in the third month of her pregnancy she developed
 
              severe left buttock pain with pain radiating into the
 
              posterior aspect of her thigh with occasional tingling
 
              feelings down into her foot.  Claimant indicated that she
 
              was doing heavy lifting activities at John Morrell and she
 
              did report the pain while working.  After an examination,
 
              Dr. Reeder noted that the claimant had a suggestion of left
 
              S1 radiculopathy.  He ordered a myelogram followed by a CT
 
              scan to rule out a disc herniation.  He also f
 
                   elt that because of claimant's small pelvis and her
 
              gestation that she suffered an S1 nerve root injury and felt
 
              that if the myelogram was negative he believed it would be
 
              very difficult to sort out whether pregnancy or work related
 
              activities generated the discomfort.  However if the
 
              myelogram showed a disc herniation he believed that the
 
              herniation was caused by work.
 
              
 
                   18.  On February 27, 1991, claimant had a myelogram
 
              which showed that claimant had minimal anterior
 
              spondylolisthesis of L5 on S1, no ventrolateral extradural
 
              defect identified to suggest disc herniation and incomplete
 
              fusion of the posterior elements of L4 and L5.  Following
 
              the myelogram, claimant had a CT scan of the lumbar spine
 
              which showed spondylolisthesis on the right at the L4
 
              vertebral body with incomplete fusion of the posterior
 
              elements of L4 with only minimal diastasis.
 
              Spondylolisthesis of the left pars interarticularis at L5
 
              with an incomplete fusion of the posterior elements of L5
 
              was also noted.  No spinal stenosis or evidence of a focal
 
              herniation at L5-S1 was found.  The radiologist did note
 
              that claimant had rotational scoliosis of the lower lumbar
 
              spine however.
 
              
 
                   19.  On March 1, 1991, Dr. Reeder had a lengthy note
 
              exchange with claimant.  He indicated that the myelogram and
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
               9ge òòò
 
              
 
              
 
              CT scan did not show any condition that he could fix with
 
              surgery.  Dr Reeder indicated that he could give claimant
 
              medication to control her pain.  Dr. Reeder told claimant
 
              that the x-rays show some arthritis in her back and some
 
              birth abnormalities.  He felt that she did stretch or hurt a
 
              nerve but surgery would not correct this problem.  He
 
              thought that surgery would cause more harm than good.  Dr.
 
              Reeder thought that claimant's back had developed
 
              abnormally.  Dr. Reeder also wrote that claimant had
 
              predisposing factors for back injury which included
 
              pregnancy and congenital defects in her spine.  Her history
 
              of heavy lifting and pain while working and his findings
 
              were consistent with a work injury.  However, when he was
 
              asked by claimant, "Do you think it's(back pain) from work
 
              related or pregnancy?" He replied, "Impossible to tell.  You
 
              have birth problems with your back that pre-dispose you to
 
              back problems.  So ? hard work ? preg. or ? was going to
 
              happen no matter what".
 
                   20.  In the typewritten report which was prepared on 
 
              March 1, 1991, Dr. Reeder  summarized the radiologist's
 
              reports and his own conclusions regarding that status of
 
              claimant's back. (Ex. 44)  His impression was that the
 
              claimant's congenital deformities of the lower spine
 
              predispose her to injury.  Her pregnancy also predisposed
 
              her to a back injury.  According to claimant's history of
 
              heavy lifting and pain while working and his findings, he
 
              concluded that claimant suffered a work related injury and
 
              that she had not reached a maximum medical improvement
 
              because financial difficulties had prevented her from taking
 
              any medication.  Given her present condition, Dr. Reeder
 
              recommended that claimant be given a permanent weight
 
              lifting restriction of 20 pounds.  Additionally, claimant
 
              should be allowed to change positions frequently from
 
              standing to sitting to resting.  He felt that she would be
 
              able to reach maximum medical improvement when she started
 
              taking medication and would be left with a permanent partial
 
              impairment of five percent.  Dr. Reeder released claimant
 
              from his care with these restrictions.
 
              
 
                   21.  On March 28, 1991, claimant was seen in the
 
              outpatient department after she had been seen by emergency
 
              room personnel.  Claimant had been in a car accident at John
 
              Morrell when she had parked to show her security ID, she was
 
              hit by another car.  Claimant was in the process of
 
              delivering insurance documents to John Morrell regarding her
 
              injury.  At the time of this accident claimant was still a
 
              John Morrell employee.   Claimant was not wearing her seat
 
              belt but was complaining of pain in her neck and upper back. 
 
              Claimant was given a prescription for pain as the x-ray
 
              studies revealed no injury.  After this accident, claimant
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              10ge òòò
 
              
 
              
 
              was certified to return to work after April 5, 1991.
 
              
 
                   22.  On May 28, 1991, claimant was examined by Dr. Pat
 
              Luse, a chiropractor in Sioux City.  At the time of the
 
              examination with Dr. Luse, claimant described her injury as
 
              frequent bending and lifting to get meat out of a barrel.
 
              Claimant gave an April 4, 1990 injury date.  The claimant
 
              indicated that she had not had a prior injury that had
 
              caused similar symptoms to those she was now experiencing.
 
              Dr. Luse, as part of his examination, examined the records
 
              from Drs. Lohr, Spartz, Reeder, Strittholt and Sundell.  At
 
              the conclusion of the examination, Dr. Luse determined that
 
              claimant had a chronic lumbar strain/sprain with a chronic
 
              S1 radiculopathy and chronic left trochanteric bursitis. Dr.
 
              Luse, based on his examination, the radiographic studies,
 
              and the subjective history given by the claimant, felt that
 
              claimant's injury was caused by at work.  He also believed
 
              that claimant had reached maximum medical improvement.  He
 
              noted that with the ending of claimant's pregnancy, her pain
 
              should have improved but it did not.  He also noted that the
 
              congenital anomilies would have been a factor but he went on
 
              to note that the claimant was asymptomatic prior to the work
 
              injury.  Dr. Luse gave a rating of five percent to the whole
 
              person.  Dr. Luse felt that claimant would be limited to
 
              performing light duties and it would be highly improbable
 
              that she would be able to  return to her former occupation. 
 
              Finally, Dr. Luse recommended a course of therapy for
 
              claimant to improve her pain condition.
 
              
 
                   23.  On June 17, 1991, claimant was examined by Dr.
 
              Daugherty.  Dr. Daugherty summarized claimant's history and
 
              the results of her recent lumbar spine studies by Dr.
 
              Reeder.  After his examination and review of claimant's
 
              lumbar spine studies, he felt that claimant could not lift
 
              more than 15 or 20 pounds, bend excessively or do frequent
 
              pushing or pulling.  Based on her CT scan, myelogram and
 
              MRI, Dr. Dougherty did not believe that claimant had
 
              sustained a permanent partial impairment as a result of
 
              working at John Morrell.  He believes that claimant
 
              aggravated her condition.  Dr. Daugherty didn't believe that
 
              claimant should be working at John Morrell and he was not
 
              sure that she should be working anywhere, but he did not
 
              believe she had sustained any significant impairment as a
 
              result of working at John Morrell.
 
              
 
                   24.  As a result of claimant's ongoing pain complaints,
 
              she can not stand for long periods of time.  She has
 
              problems of lifting her youngest child and it is difficult
 
              for her to do her household chores.  Claimant has not worked
 
              since she lost her job with John Morrell.  Claimant has not
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              11ge òòò
 
              
 
              
 
              looked for work, but she thinks that the only type of work
 
              she could get into is some type of factory work.
 
              
 
                   25.  As a result of claimant's back problems, she has
 
              accumulated several medical bills.  These are as follows:
 
              
 
              Sioux City Radiology             $  48.00
 
              Dr. Sundell                         110.00
 
              Dr. Lohr                            256.04
 
              Marian Health Center              3,377.78
 
              St. Luke's                          367.00
 
              Sioux City Neurosurgery             169.00
 
              Dr. Strittholt                      429.00
 
              Dr. Pat Luse                        340.00
 
              Rachel John Deaf Interpreter         50.00
 
              Prescriptions                       171.97
 
              Iowa Dept. Human Services           571.52
 
                 TOTAL:                        $5,890.31
 
              
 
              The bill from Sioux City Radiology is for the injury in
 
              March of 1991 when claimant was delivering insurance papers
 
              to John Morrell.  The bill from Dr. Sundell is for a
 
              neurological evaluation on January 2, 1991.  Dr. Lohr
 
              referred claimant to Dr. Sundell for an evaluation for her
 
              low back pain.  The bill from Dr. Lohr shows expenses for
 
              office visits on May 1, 1990, May 10, 1990, June 6, 1990,
 
              June 18, 1990, July 10, 1990, July 23, 1990, Nov. 13, 1990,  
 
              Nov. 29, 1990, Jan. 7, 1991, April 5, 1991 and April 15,
 
              1991.  Claimant also had a variety of services from Dr. Lohr
 
              which included urinalysis on May 10, 1990, June 6, 1990,
 
              June 18, 1990, July 10, 1990 and July 23, 1990.  Claimant
 
              received emergency services on May 20, 1990 and March 28,
 
              1991.  Claimant recieved outpatient services on March 28,
 
              1991  and had an ultrasound study on April 5, 1991.  Of
 
              these services, the office visits are temporally connected
 
              to the the work injury and the emergency services were given
 
              at the time of claimant's car accident at John Morrell. 
 
              Claimant has made no showing that the urinalysis, or the
 
              ultrasound were related to her work injury.
 
              The bills from the Marian Health Center are for the
 
              myelogram, the attendant laboratory work, an MRI study of
 
              the claimant's spine and emergency room services on November
 
              19, 1990.  Claimant's bill from St. Luke's is for outpatient
 
              services, an emergency room physician for services in March
 
              of 1991 and physical therapy in July of 1990.  The bill from
 
              Sioux City Neurology was for a consultation and follow-up
 
              examination on January 25, 1991 and March 1, 1991 by Dr.
 
              Reeder.  The remaining bills are self explanatory.
 
                                                
 
                              CONCLUSIONS OF LAW
 

 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              12ge òòò
 
              
 
              
 
              
 
                   1.  Whether claimant sustained an injury on April 4,
 
              1990 which arose out of and in the course of her employment
 
              with John Morrell.
 
                   Claimant argues that she suffered a work related injury
 
              that continues to prevent her from working.  Defendants
 
              contend that claimant was not injured at work.
 
              
 
                   Claimant has the burden of proving by a preponderance
 
              of the evidence that she received an injury on April 4, 1990
 
              which arose out of and in the course of her employment.
 
              McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa
 
              1976); Musselman v. Central Telephone Co., 154 N.W.2d 128,
 
              130 (Iowa 1967).  The words "arising out of" have been
 
              interpreted to refer to the cause and origin of the injury.
 
              McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);
 
              Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63,
 
              65 (Iowa 1955).  The words "in the course of" refer to the
 
              time, place and circumstances of the injury.  McClure, 188
 
              N.W.2d at 287; Crowe, 68 N.W.2d at 65.  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 the employee is doing work assigned by the employer or
 
              something incidental to it.  Cedar Rapids Community School
 
              District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure
 
              188 N.W.2d at 287; Musselman, 154 N.W.2d at 130.
 
                   There is no requirement that there be a specific
 
              traumatic event to make an employer liable for an injury
 
              occurring to an employee while engaged in the employer's
 
              pursuits. It is enough if there is some hurt or damage that
 
              occurs during the course of employment that makes the
 
              employer liable.  Almquist v. Shenandoah Nurseries, 254 N.W.
 
              35, 38 (Iowa 1934)  In Almquist, the Court found that a
 
              personal injury, is an injury to the body, the impairment of
 
              health, or a disease, not excluded by the Workers
 
              Compensation 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.  The injury to the human body must be
 
              something, whether an accident or 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.
 
              
 
                   The Almquist Court further observed that while a
 
              personal injury does not include an occupational disease
 
              under the Workmen's Compensation Act, it does include a
 
              personal injury to the health of a worker.  A personal
 
              injury includes a disease resulting from an injury. However,
 
              the result of changes in the human body incident to the
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              13ge òòò
 
              
 
              
 
              general processes of nature do not amount to a personal
 
              injury.  This is true, even though natural change may come
 
              about because the life has been devoted to labor and hard
 
              work.  Results of those natural changes do 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.
 
              
 
                   Claimant is not entitled to compensation for the
 
              results of a preexisting injury or disease.  Bearce v. FMC
 
              Corporation, 465 N.W.2d 531, 536 (Iowa 1991); Olsen v.
 
              Goodyear Service Stores, 125 N.W.2d 251, (1963) Rose v. John
 
              Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). 
 
              However, 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., 106 N.W.2d 591, 595
 
              (Iowa 1960).  The Supreme Court has also indicated that in
 
              order for an aggravation of a preexisting condition to be
 
              compensable, the aggravation should be material.  Yeager v.
 
              Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa
 
              1961).
 
              
 
                   In this instance, claimant has shown that she suffered
 
              a work related aggravation of her congenital back
 
              abnormality.  Dr. Dougherty, a board certified orthopedist
 
              had an opportunity to examine claimant both after her injury
 
              and while she was pregnant and then after she had delivered. 
 
              He concluded that after he had seen the CT scan and
 
              myelogram, that claimant had aggravated her back at work.
 
              The opinions of Dr. Reeder and Dr. Luce have been discounted
 
              because the claimant gave these doctors inaccurate
 
              histories.  Dr. Reeder thought that claimant was doing heavy
 
              lifting in her work while at John Morrell.  This was not
 
              accurate.  Dr. Luce thought that claimant was asymptomatic
 
              until the date of the occurrence.  This was also inaccurate. 
 
              Drs. Strittholt and Lohr could not explain claimant's pain,
 
              however, they did not have the opportunity to examine
 
              claimant's CT scan and myelogram.  The fact finder is free
 
              to choose between the expert testimony presented at the time
 
              of hearing.  Expert testimony can be rejected by the fact
 
              finder if the premise for the opinion is flawed.  Sondag v.
 
              Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  In this
 
              instance, Dr. Dougherty's opinion will be adopted as the
 
              controlling expert in this case.
 
              
 
                   2.   Whether a causal relationship exists between
 
              claimant's claimed injuries and the claimed disability and
 
              the nature and extent of any entitlement to benefits, if 
 
              any.
 

 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              14ge òòò
 
              
 
              
 
              
 
                   Claimant next argues that her aggravation at work is
 
              the cause of temporary and permanent disability.  Claimant
 
              also contends that she is entitled to temporary total
 
              disability benefits or healing period benefits.  Defendants
 
              contend that claimant has no permanent disability from her
 
              work injury.
 
              
 
                   The claimant has the burden of proving by a
 
              preponderance of the evidence that the injury of April 4,
 
              1990, is causally related to the disability on which she now
 
              bases her claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867,
 
              868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607,
 
              613-14 (Iowa 1945).  A possibility is insufficient; a
 
              probability is necessary.  Burt v. John Deere Waterloo
 
              Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question
 
              of causal connection is essentially within the domain of
 
              expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101
 
              N.W.2d 167, 171 (Iowa 1960).
 
              
 
                   Expert medical evidence must be considered with all
 
              other evidence introduced bearing on the causal connection.
 
              Burt, 73 N.W.2d at 738.  The opinion of the experts need not
 
              be couched in definite, positive or unequivocal language.
 
              Sondag, 220 N.W.2d at 907.  Moreover, the expert opinion may
 
              be accepted or rejected, in whole or in part, by the trier
 
              of fact.  Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances. Bodish,
 
              133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme
 
              Court has also observed that greater deference is ordinarily
 
              accorded expert testimony where the opinion necessarily
 
              rests on medical expertise.  Sondag, 220 N.W.2d at 907.
 
              
 
                   In this instance, Dr. Dougherty has indicated that
 
              claimant did not suffer a permanent disability while she
 
              worked at John Morrell.  The other opinions offered by other
 
              professionals have been discounted due to flawed histories
 
              given by claimant.  Consequently, the evidence is
 
              insufficient to support a
 
                    finding that claimant has suffered a permanent injury
 
              to her back.  At most, claimant suffered a temporary
 
              aggravation of a preexisting condition at work and will be
 
              compensated accordingly.
 
                   Pursuant to Iowa Code sections 85.32 and 85.33 (1991),
 
              temporary total disability of more than 14 days is payable
 
              in effect from the injury until the employee has returned to
 
              work or is medically capable of returning to substantially
 
              similar employment, whichever first occurs.  Claimant bears
 
              the burden of proving entitlement to temporary total
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              15ge òòò
 
              
 
              
 
              disability benefits.  Howard v. Whitehall Transportation,
 
              File No. 779866 Slip Op. at 5 (Iowa Ind. Comm'r May 14,
 
              1991).
 
              
 
                   Claimant's period of disability was intermittent did
 
              not end until after her pregnancy was concluded and the 
 
              treating physicians could determine that a combination of
 
              problems were contributing to claimant's back pain.  Dr.
 
              Reeder made this determination on March 1, 1991.  Dr.
 
              Dougherty made this conclusion on June 17, 1991.  Since Dr.
 
              Dougherty has been adopted as the controlling expert in this
 
              case, claimant's period of temporary disability ended when
 
              Dr. Dougherty decided that claimant had not suffered a
 
              permanent injury from her work at John Morrell, but
 
              concluded that her other conditions were keeping her from
 
              returning to gainful employment.  Consequently, claimant's
 
              disability period included the time between April 6 to April
 
              23, 1990,  April 26, 1990 to October 22, 1990 and from
 
              November 1, 1990 until June 17, 1991.
 
              
 
                   3.  Whether claimant is entitled to medical benefits,
 
              including a determination of causal connection to the work
 
              injury and the causal connection of this condition to a work
 
              injury.
 
                   Claimant next argues that she is entitled to medical
 
              benefits as a result of her injuries.  Defendants contend
 
              that the medical expenses claimant incurred were for a non
 
              work related condition.
 
              
 
                   Under Iowa Code Section 85.27(1991) an employer has the
 
              responsibility to provide an injured worker with reasonable
 
              medical care and has the right to select the care the worker
 
              will receive.  Claimant has the burden of demonstrating that
 
              the medical services obtained were causally related to the
 
              injury in order to have the expenses reimbursed or paid.
 
              Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144
 
              (1978).
 
              
 
                   Claimant has shown by a preponderance of the evidence
 
              that she sustained an injury while working for John Morrell. 
 
              As a consequence, the necessary nexus has been established
 
              and John Morrell must provide medical benefits to claimant
 
              pursuant to Iowa Code section 85.27 (1991) for the care and
 
              treatment of the aggravation to claimant's back.
 
              
 
                   A review of the bills submitted indicates that most of
 
              these bills are related to claimant's injury or the car
 
              accident of March 11, 1991.  Claimant was within the course
 
              of her employment when she was struck on John Morrell's
 
              property while delivering insurance papers to the plant.
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              16ge òòò
 
              
 
              
 
              Since this accident occurred while claimant was on at John
 
              Morrell, delivering insurance documents relating to her
 
              earlier injury, John Morrell is responsible for her medical
 
              bills resulting from those injuries.  John Morrell must also
 
              pay for the bills relating to claimant's back treatment.
 
              John Morrell is not responsible for payment of bills
 
              relating to claimant's pregnancy and those bills whose
 
              purpose or connection to the injury cannot be identified. In
 
              this instance, John Morrell does not have to pay for the
 
              urinalysis work, the ultra sound, the office visit for lower
 
              abdomen complaints, and the emergency services on May 20,
 
              1990, from Dr. Lohr's bill.  The remaining bills must be
 
              paid as the claimant has shown that these are medical
 
              expenses incurred as a result of her work injury.
 
              
 
                   On the issue of authorization, John Morrell denied 
 
              liability for this claim from the outset.  The employer
 
              cannot direct care and deny liability simultaneously.
 
              Pickett v. Davenport Lutheran Home, File No. _________, Slip
 
              Op. (Iowa Ind. Comm'r Appeal, October 30, 1987) (Defendants
 
              may not deny liability and direct the course of claimant's
 
              medical treatment).  Early on in this case John Morrell
 
              decided that claimant's pain complaints were not work
 
              related and advised her to seek her own medical care. John
 
              Morrell cannot now argue that the treatment was not
 
              authorized since it denied liability for the claim.
 
              order
 
              
 
                   THEREFORE, IT IS ORDERED:
 
              
 
                   1.  John Morrell and National Union Fire Insurance Co.,
 
              shall pay to claimant temporary total disability benefits
 
              for the period of time beginning on April 6, 1990 to April
 
              23, 1990 and for the period of time from April 26, 1990 to
 
              October 22, 1990 and for the period of time from November 1,
 
              1990 to June 17, 1991 for an injury to claimant's back at
 
              the rate of two hundred eight and 53/100 dollars ($208.53)
 
              per week.  As these benefits have accrued, they shall be
 
              paid in a lump sum together with statutory interest thereon
 
              pursuant to Iowa Code section 85.30 (1991).
 
              
 
                   2.  John Morrell shall pay medical benefits to claimant
 
              in the amounts set out in paragraph 25 of this decision
 
              except that John Morrell is not liable for the urinalysis
 
              work, the ultra sound, the office visit for lower abdomen
 
              complaints, and the emergency services on May 20, 1990, from
 
              Dr. Lohr's bill.
 
              
 
                   2.  The costs of this action shall be assessed to John
 
              Morrell and National Union Fire Insurance Co. pursuant to
 
              
 
              
 
              GLANN V. JOHN MORRELL & CO.
 
              17ge òòò
 
              
 
              
 
              rule 343 IAC 4.33.
 
                   3.  John Morrell and National Union Fire Insurance Co.
 
              shall file claim activity reports as required by rule 343
 
              IAC 3.1.
 
              Signed and filed this ____ day of October, 1992.
 
              
 
              
 
              
 
              
 
                                         ________________________________
 
                                               ELIZABETH A. NELSON
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
              
 
              Copies To:
 
              
 
              Mr Harry H Smith
 
              Attorney at Law
 
              PO Box 1194
 
              Sioux City Iowa 51102
 
              
 
              Mr Thomas M Plaza
 
              Attorney at Law
 
              701 Pierce Street Ste 200
 
              PO Box 3086
 
              Sioux City Iowa 51102
 
               
 
 
           
 
 
 
 
 
 
 
 
 
 
 
                                              5-1801; 5-2505
 
                                              Filed October 9, 1992
 
                                              ELIZABETH A. NELSON
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
           ____________________________________________________________
 
                               
 
           PAULA N. GLANN,     
 
                           
 
                Claimant, 
 
                          
 
                vs.       
 
                                               File No.  939135
 
           JOHN MORRELL & COMPANY,  
 
                                           A R B I T R A T I O N
 
                Employer, 
 
                                               D E C I S I O N
 
                and       
 
                          
 
           NATIONAL UNION FIRE 
 
           INSURANCE COMPANY,  
 
                     
 
                Insurance Carrier,  
 
                Defendants.    
 
           ___________________________________________________________
 
           
 
           5-1801
 
           Deaf mute claimant was awarded temporary total disability 
 
           benefits and medical benefits for back injury she suffered 
 
           at work.  The injury aggravated a preexisting back 
 
           condition.  Claimant was pregnant at the time of her injury 
 
           and this complication was an aggravating factor as well.  
 
           The medical evidence was not sufficient to show that 
 
           claimant had suffered a permanent disability from her work 
 
           injury.
 
           
 
           5-2505
 
           Some of claimant's medical bills were excluded because the 
 
           bills were related to her pregnancy and not the work injury.
 

 
           
 
 
 
 
 
 
 
 
 
 
 
           
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ONALEE V. GALLI,    
 
                      
 
                 Claimant,                     File No. 939147
 
                      
 
            vs.                                 A P P E A L
 
                      
 
            K MART CORPORATION,              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 September 30, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay all costs including the preparation of 
 
            the hearing transcript.
 
            Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven K. Warbasse
 
            Mr. Ross Hauser
 
            Attorneys at Law
 
            P.O. Box 5395
 
            Cedar Rapids, Iowa 52406-5395
 
            
 
            Mr. Joel T. S. Greer
 
            Attorney at Law
 
            P.O. Box 496
 
            Marshalltown, Iowa 50158
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9998 
 
                                                 Filed July 28, 1992
 
                                                 Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ONALEE V. GALLI,    
 
                      
 
                 Claimant,                      File No. 939147
 
                      
 
            vs.                                  A P P E A L
 
                      
 
            K MART CORPORATION,               D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            30, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ONALEE V. GALLI,              :
 
                                          :
 
                 Claimant,                :         File No. 939147
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            K MART CORPORATION,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Onalee V. Galli, against her self-insured 
 
            employer, K Mart Corporation, to recover benefits under the 
 
            Iowa Workers' Compensation Act as the result of an alleged 
 
            injury of November 22, 1988.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner at Cedar Rapids, Iowa, on August 1, 1991.  A 
 
            first report of injury has been filed.
 
            
 
                 The record in this matter consists of claimant's 
 
            exhibits A through M as identified on claimant's exhibit 
 
            list, defendant's exhibits 1 through 33 and 35 as identified 
 
            on defendant's exhibit list and the testimony of claimant, 
 
            of Thomas W. Magner, of Connie Cannady, of Donna Langherst 
 
            Koranda and of Donald W. Yarrington.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulation of the parties at 
 
            hearing, the parties have stipulated that the costs for 
 
            medical charges were fair and reasonable for the condition 
 
            treated and that the treatment was reasonable and necessary 
 
            treatment for the condition treated and that, at the time of 
 
            the alleged injury, claimant's gross weekly wage was 
 
            $218.00, she was single and entitled to one exemption, 
 
            creating a weekly compensation rate of $137.13.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of her employment;
 
            
 
                 2.  Whether claimant's claim is barred as not filed 
 
            within the applicable statute of limitations;
 
            
 
                 3.  Whether claimant's claim is barred for failure to 
 
            provide adequate notice to defendant;
 
            
 
                 4.  Whether a causal relationship exists between the 
 
            alleged injury and the claimed disability;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  The nature and extent of any benefit entitlement;
 
            
 
                 6.  Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27; and,
 
            
 
                 7.  Whether defendant is entitled to a credit for 
 
            benefits paid pursuant to section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant was 58 years old at time of hearing.  Claimant 
 
            has completed ninth grade, but has never obtained a GED.  
 
            Her past work experience is as a bartender, dishwasher and 
 
            waitress.  She began work at K Mart primarily in the 
 
            cafeteria and deli area in September 1980.  Claimant worked 
 
            an eight-hour day at K Mart on a tile-covered cement floor.  
 
            The job generally involved standing.  The employer had 
 
            provided a two-foot step ladder as a stool for claimant to 
 
            sit on, however, in order to accommodate claimant's knee 
 
            condition subsequent to 1984.  Claimant's testimony that 
 
            defendant, specifically her supervisor, did not permit her 
 
            to sit on the stool is not supported by the record overall.
 
            
 
                 Claimant has had arthritic problems in her ankles, her 
 
            hip and apparently her back as well as her knees.
 
            
 
                 Claimant saw Arthur E. Barnes, M.D., her family 
 
            physician, for bilateral knee pain on apparently March 27, 
 
            1982.  Dr. Barnes noted her pain seem worse when she worked, 
 
            but got better when she took a few days off.  He diagnosed 
 
            degenerative arthritis.  Dr. Barnes subsequently referred 
 
            claimant to Albert R. Coates, M.D., an orthopaedic surgeon, 
 
            who diagnosed degenerative joint disease.  In April 1984, 
 
            Dr. Coates did arthroscopic surgery on claimant's right knee 
 
            with patellar shaving.  Dr. Coates then initiated a program 
 
            of conservative care consisting of anti-inflammatory 
 
            medications and physical therapy exercises.  Claimant did 
 
            not experience significant relief.  Dr. Coates in 1984 
 
            advised claimant that her knee problems were related to her 
 
            work at K Mart.  Claimant was off work in 1984 on account of 
 
            the arthroscopic surgery.  She received long-term disability 
 
            benefits through K Mart.  Claimant did speak frequently with 
 
            K Mart personnel and with regular customers regarding her 
 
            knees from 1984 onward, however.  These conversations 
 
            apparently never included comments indicating that the knee 
 
            condition was work related.  Claimant did not report a 
 
            work-related condition regarding her knees to K Mart 
 
            personnel in 1984 or subsequent thereto.  Claimant did have 
 
            alleged work injuries involving her left arm and her right 
 
            hand which she did properly report.
 
            
 
                 Claimant did advise her K Mart personnel director that 
 
            she was leaving for knee surgery in November 1988.  Dr. 
 
            Coates performed bilateral knee replacement surgeries on 
 
            November 22, 1988 and May 10, 1989, respectively.  Claimant 
 
            did not expressly advise the personnel director or any other 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            K Mart official that her knee surgeries were work related.  
 
            Claimant received non-workers' compensation 
 
            employer-provided short-term disability benefits while off 
 
            on account of her November 1988 knee surgery.
 
            
 
                 Under K Mart company policy, employees are to notify 
 
            the personnel manager of work injuries.  The name of the 
 
            company doctor and the procedure for reporting work injuries 
 
            are posted on the bulletin board and were so posted in 
 
            December of 1988.  The Employee Handbook, a copy of which is 
 
            apparently available to all employees, also expressly states 
 
            that all injuries are to be reported to a member of 
 
            management and that an accident report must be filled out 
 
            for every injury, "no matter how minor at the time of the 
 
            occurrence."  Neither Dr. Coates nor Dr. Barnes are K Mart 
 
            authorized physicians.
 
            
 
                 In November 1989, K Mart advised claimant that under 
 
            company policy, she would be terminated [apparently as she 
 
            had not returned to work within one year].  Claimant chose 
 
            to take early retirement.  She receives $36.36 per month 
 
            pension through a K Mart plan.
 
            
 
                 At time of hearing, claimant had primary daytime 
 
            responsibility for caring for the four children of a 
 
            daughter who was incarcerated.  The children ranged in age 
 
            from 14 years to 11 months.  Claimant has not sought work or 
 
            retraining since her final knee surgery.  Claimant 
 
            attributed her failure to do so to her need to be 
 
            responsible for her grandchildren.
 
            
 
                 Thomas Magner, a certified rehabilitation counselor, 
 
            testified that claimant has no job skills from prior jobs 
 
            that would transfer into any new job, given her physical 
 
            limitations, which he stated included degenerative arthritis 
 
            in the hip and back, knee replacements, memory loss, chronic 
 
            fatigue and stiffness in the left upper extremity.  Dr. 
 
            Coates never released claimant to go back to work subsequent 
 
            to her first knee surgery.  Dr. Coates opined that claimant 
 
            was incapable of doing her old job and that claimant could 
 
            do sedentary work not involving a lot of filing.  He 
 
            recommended that claimant have a job where she could stand 
 
            or sit intermittently, but primarily a seated job.  He 
 
            recommended no stair climbing, walking consistently on 
 
            concrete, squatting, kneeling or object carrying.
 
            
 
                 It is expressly found that claimant has some residual 
 
            capacity for job performance and retraining and that 
 
            claimant has not availed herself to seeking out any 
 
            opportunities potentially available to her as she has been 
 
            engaged in caring for her grandchildren.
 
            
 
                 Dr. Coates first saw claimant in January 1984 for 
 
            evaluation of pain in both knees.  Dr. Coates opined that 
 
            claimant had degenerative joint disease, the symptoms of 
 
            which were aggravated by her employment.  The doctor later 
 
            stated that employment aggravated the degenerative joint 
 
            disease in that claimant had a gradual recurrence of 
 
            symptoms after her return to work after 1984 and, in that, 
 
            in 1984, claimant had had an onset of symptoms subsequent to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            performing work on her knees when she had not previously had 
 
            [knee] problems.  Dr. Coates' undisputed testimony that 
 
            claimant's knee condition results in a permanent partial 
 
            impairment of 15 percent of each lower knee and that 
 
            claimant achieved maximum medical improvement approximately 
 
            October 12, 1989, is accepted.  Dr. Coates characterized 
 
            claimant's knee replacements in 1989 as much more serious 
 
            injuries than her 1984 arthroscopy.
 
            
 
                                conclusions of law
 
            
 
                 We first must consider the jurisdictional issue of 
 
            whether claimant has timely filed her original notice and 
 
            petition.  Because the timeliness of claimant's claim can be 
 
            ascertained only after it is determined whether and when 
 
            claimant did receive an injury arising out of and in the 
 
            course of her employment, that issue shall also be discussed 
 
            below.  Given the nature of claimant's condition, the 
 
            medical causation issue also must be discussed.
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under section 86.13.  Section 85.26(1).  A proceeding in 
 
            review-reopening must be commenced within three years from 
 
            the date of the last payment of weekly benefits under either 
 
            an award for payments or an agreement for settlement.  
 
            Section 85.26(2).  The "discovery rule" may extend the time 
 
            for filing a claim where weekly benefits have not yet been 
 
            paid.  The rule does not extend the time for filing a claim 
 
            where benefits have been paid.  Orr v. Lewis Cent. School 
 
            Dist., 298 N.W.2d 256 (Iowa 1980).  Under the rule, the time 
 
            during which a proceeding may be commenced does not begin to 
 
            run until the claimant, as a reasonable person, should 
 
            recognize the nature, seriousness and probable compensable 
 
            character of the condition.  The reasonableness of 
 
            claimant's conduct is to be judged in light of the 
 
            claimant's education and intelligence.  Claimant must know 
 
            enough about the condition to realize that it is both 
 
            serious and work connected.  Orr, 298 N.W.2d 256; Robinson 
 
            v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).
 
            
 
                 Failure to timely commence an action under the 
 
            limitations statute is an affirmative defense which 
 
            defendants must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means a   cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Coates is the sole medical practitioner issuing 
 
            opinions in this matter.  His testimony at best is 
 
            confusing.  At one point, he indicates that claimant's 
 
            symptoms of degenerative joint disease were aggravated by 
 
            her work.  An aggravation of symptoms only is not such as 
 
            would produce a work injury beyond perhaps a period of 
 
            temporary total disability.  He later opines that claimant's 
 
            condition itself was aggravated by her work at K Mart.  The 
 
            general trend of the doctor's testimony supports a finding 
 
            that the doctor believed claimant's history, including her 
 
            onset of symptoms after work at K Mart and the nature of her 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            duties at K Mart, produced an actual aggravation of 
 
            claimant's degenerative joint condition in her knees, 
 
            however.  Such is sufficient to establish that claimant did 
 
            receive an injury arising out of and in the course of her 
 
            employment at K Mart.
 
            
 
                 We next need ascertain when claimant's injury occurred.
 
            
 
                 Claimant has asserted an injury date of November 22, 
 
            1988, the day she underwent her first knee replacement 
 
            surgery.  Were that the appropriate injury date, claimant 
 
            would have timely filed her petition.  Claimant is alleging 
 
            a bilateral cumulative trauma to her knees, however.  The 
 
            medical records demonstrate that claimant first treated for 
 
            knee complaints in 1982.  She first left work on account of 
 
            her knee complaints when she underwent her left knee 
 
            arthroscopy in 1984.  She was off work for a considerable 
 
            period of time subsequent to that procedure.  The medical 
 
            reports and notes in the record make clear that claimant's 
 
            knee problems which ultimately resulted in her bilateral 
 
            knee replacement surgeries have their roots in the 
 
            degenerative joint disease, which degenerative joint disease 
 
            directly correlates with claimant's left knee arthroscopy in 
 
            1984 and her subsequent need to be off work.  Given such, 
 
            the appropriate date of injury is that date in 1984 when 
 
            claimant actually left work on account of her injury.  The 
 
            appropriate date of injury is not November 22, 1988.
 
            
 
                 Claimant then can show that her original notice and 
 
            petition was timely filed under section 85.26(1) only if 
 
            claimant demonstrates she was unable to discover her 
 
            work-related condition until at least May 18, 1988, that is 
 
            two years prior to the filing of her original notice and 
 
            petition.
 
            
 
                 Claimant fails in this regard.  Claimant appears to be 
 
            a reasonable person.  While she lacks formal education, she 
 
            does not appear unintelligent or unable to comprehend direct 
 
            medical statements.  Dr. Coates advised claimant in 1984 
 
            that her condition was work related.  Claimant certainly 
 
            realized that a medical procedure such as the 1984 
 
            arthroscopy which required her to be off work for a 
 
            substantial period of time was serious.  Hence, no basis can 
 
            be found for indicating that claimant should not reasonably 
 
            have known that her condition was both serious and work 
 
            connected in 1984.  Claimant has failed to show that her 
 
            original notice and petition was filed within the two-year 
 
            time limitation established by section 85.26(1).  Her claim, 
 
            therefore, fails.
 
            
 
                 We note that, even had claimant prevailed on the 
 
            statute issue, claimant's claim would have failed on account 
 
            of her failure to give her employer timely notice of her 
 
            condition as required by section 85.23.
 
            
 
                 Section 85.23 requires an employee to give notice of 
 
            the occurrence of an injury to the employer within 90 days 
 
            from the date of the occurrence, unless the employer has 
 
            actual knowledge of the occurrence of the injury.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 The purpose of the 90-day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the facts surrounding the injury.  The actual 
 
            knowledge alternative to notice is met when the employer, as 
 
            a reasonably conscientious manager, is alerted to the 
 
            possibility of a potential compensation claim through 
 
            information which makes the employer aware that the injury 
 
            occurred and that it may be work related.  Dillinger v. City 
 
            of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't 
 
            of Transp., 296 N.W.2d 809 (Iowa 1980).  The time period for 
 
            giving notice does not begin to run until the claimant as a 
 
            reasonable person, should recognize the nature, seriousness 
 
            and probable compensable character of the injury.  The 
 
            reasonableness of claimant's conduct is to be judged in 
 
            light of claimant's education and intelligence.  Claimant 
 
            must know enough about the condition or incident to realize 
 
            that it is both serious and work connected.  Positive 
 
            medical information is unnecessary if information from any 
 
            source gives notice of the condition's probable 
 
            compensability.  Robinson, 296 N.W.2d 809.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
            
 
                 Claimant clearly did not give her employer actual 
 
            notice of her injury within 90 days of leaving work for her 
 
            arthroscopic surgery in 1984.  Likewise, for reasons cited 
 
            above, it cannot be said that claimant should not have 
 
            realized that her condition was both serious and work 
 
            connected within 90 days of her 1984 left knee arthroscopy 
 
            such that the discovery rule would save her claim despite 
 
            the section 85.23 notice requirement.  Similarly, it cannot 
 
            be said that the employer had actual knowledge of the 
 
            occurrence of the injury, either at the time of the left 
 
            knee arthroscopy in 1984 or at the time of the surgeries in 
 
            1988 and 1989.  Claimant had a long-time history of 
 
            degenerative joint disease.  That degenerative joint disease 
 
            affected her hips, ankles and apparently back, as well as 
 
            her knees.  While claimant did work in a job that required 
 
            significant standing on concrete floors, that fact in and of 
 
            itself cannot be considered of such significance that it 
 
            should have alerted a reasonably conscientious manager that 
 
            a person with a history of degenerative joint disease was 
 
            developing a work-related knee condition.  For the above 
 
            reasons, it is concluded that the notice requirement of 
 
            section 85.23 also prevents claimant recovering from her 
 
            employer on account of her claimed injury.
 
            
 
                 As claimant's claim is barred both as filed beyond the 
 
            applicable statutory period and as a claim where notice was 
 
            not timely given the employer, we need not reach the 
 
            question of benefit entitlement, medical payment entitlement 
 
            or section 85.38(2) credit entitlement.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from this proceeding.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Claimant pay the costs of this proceeding pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven K. Warbasse
 
            Mr. Ross Hauser
 
            Attorneys at Law
 
            Suite 1150, The Center
 
            P.O. Box 5395
 
            Cedar Rapids, Iowa  52406-5395
 
            
 
            Mr. Joel T. S. Greer
 
            Attorney at Law
 
            112 West Church Street
 
            P.O. Box 496
 
            Marshalltown, Iowa  50158
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2401; 2402; 2801
 
                           Filed September 30, 1991
 
                           HELENJEAN WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ONALEE V. GALLI,    :
 
                      :
 
                 Claimant, :         File No. 939147
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            K MART CORPORATION, :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            2401; 2402; 2801
 
            Claimant's claim of a work-related knee injury barred under 
 
            85.26(1) where claimant left work for arthroscopic knee 
 
            surgery in 1984, but did not file her original notice and 
 
            petition until May 1990.  Claimant had knee replacement 
 
            surgeries in November 1988 and May 1989, which surgeries 
 
            were found to be continuing manifestations of the knee 
 
            conditions for which she left work in 1984.
 
            Claimant also failed to provide her employer with notice of 
 
            the injury.  Discussion of knee problems with co-workers and 
 
            regular customers not sufficient notice of injury where 
 
            claimant had known history of degenerative joint disease 
 
            throughout her body.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1802
 
            Filed February 28, 1992
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TONY L. BARNES,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     File Nos. 846639/939159
 
                                          :                939160
 
            HON INDUSTRIES,               :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            1802
 
            Deputy affirmed but healing period award modified.  Primary 
 
            physician stated claimant was capable of returning to work 
 
            in December 1989.  A second physician told claimant in 
 
            October 1989, he would like to see him again in two months 
 
            (December 1989).  The visit did not occur until March 1990, 
 
            at which point the second doctor indicated further surgery 
 
            was not necessary.  Held that healing period ended in 
 
            December 1989 and not March 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TONY L. BARNES,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 846639
 
            vs.                           :                   939159
 
                                          :                   939160
 
            HON INDUSTRIES,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Tony L. 
 
            Barnes, claimant, against Hon Industries, employer, 
 
            hereinafter referred to as Hon, and The Travelers Insurance 
 
            Company, insurance carrier, for workers' compensation 
 
            benefits as the result of alleged injuries on January 31, 
 
            1987, March 21, 1988 and March 20, 1989.  On April 9, 1991, 
 
            a hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  All of the alleged injuries arose out of and in the 
 
            course of claimant's employment with Hon.
 
            
 
                 2.  Claimant is seeking additional temporary total 
 
            disability or healing period benefits only for the period of 
 
            time extending from January 8, 1990 through September 13, 
 
            1990 and defendants agree that he was not working at this 
 
            time.  Defendants voluntarily paid benefits for lost time 
 
            prior to January 8, 1990.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is a scheduled member 
 
            disability to the right arm.
 
            
 
                 4.  Claimant's rate of weekly compensation shall be 
 
            $232.68 (see the last paragraph of the Conclusions of Law 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            section of this decision).
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issues
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant worked for Hon from 1985 until the date of the 
 
            last injury of March 20, 1989.  Claimant began as a 
 
            fabricator and then became a welder.  Claimant was first 
 
            injured while performing the welding job.  After his return 
 
            to work following this injury, claimant was assigned upon 
 
            doctors' advice to the job of grinder/sander/buffer.  
 
            Claimant worked in this job until March 20, 1989 at which 
 
            time he left employment with Hon upon doctors' advice.
 
            
 
                 The first injury of January 31, 1987 involved the right 
 
            wrist and hand.  Claimant was struck hard in the palm of the 
 
            hand when a welding clamp snapped open.  Claimant said the 
 
            sensation felt like "electricity went through his arm."  
 
            Claimant was unable to continue working at that time and 
 
            sought medical treatment.  The initial diagnosis was acute 
 
            tendonitis and possible fracture.  After further tests 
 
            failed to show a fracture, the diagnosis centered around 
 
            tendonitis and a "nerve stretch" injury.  Claimant was 
 
            primarily treated by an orthopaedic surgeon, William R. 
 
            Irey, M.D.  This treatment consisted of taking claimant off 
 
            work; the immobilization of the right hand with a cast; and, 
 
            physical therapy for several months.  Claimant eventually 
 
            was released to return to work to the welding job in the 
 
            summer of 1987.  Following his return to work, claimant 
 
            continued to suffer occasional pain and numbness in the 
 
            right arm and hand, but tests conducted by Dr. Irey failed 
 
            to reveal any abnormalities.  The findings above with 
 
            reference to the injury are based upon the views of the 
 
            treating physician, Dr. Irey, as expressed in his reports 
 
            and progress notes placed into the record.
 
            
 
                 On or about March 21, 1988, claimant suffered a second 
 
            injury to the right arm and wrist when he suffered increased 
 
            pain after lifting steel parts at work.  Upon a diagnosis of 
 
            right carpal tunnel syndrome, claimant was again off work 
 
            for several months and received physical therapy and 
 
            medication from Dr. Irey.  After a second opinion confirmed 
 
            Dr. Irey's recommendation that claimant undergo surgery, Dr. 
 
            Irey performed the carpal tunnel surgery in July 1988.  
 
            Claimant initially improved, but eventually the chronic arm 
 
            and hand pain returned.  Claimant returned to work in 
 
            November 1988, but this time Dr. Irey approved only a return 
 
            to the job of grinder/sander/buffer.  The findings above 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with reference to this injury are based upon the views of 
 
            the treating physician, Dr. Irey, as again expressed in his 
 
            reports and progress notes placed into the record.
 
            
 
                 On March 20, 1989, claimant suffered a third injury to 
 
            the right arm, wrist and elbow.  Although nothing in 
 
            particular happened on that date, this is the time when 
 
            claimant was compelled because of his pain to leave his job 
 
            at Hon and seek medical treatment.  The diagnosis of this 
 
            condition consisted of multiple neuropathies due to overuse 
 
            of claimant's arm and hand in his work at Hon.  The new 
 
            complaint of elbow pain was diagnosed as tendonitis of the 
 
            elbow and entrapment of the ulnar nerve.  The findings above 
 
            with reference to the injury are based upon the views of the 
 
            treating physician, Dr. Irey, as also expressed in his 
 
            reports and progress notes placed into the record.  The 
 
            grinder/sander/buffer job involved the repetitive use of 
 
            vibrating tools requiring constant tight gripping with the 
 
            right hand.
 
            
 
                 Claimant permanently left his employment at Hon on 
 
            March 20, 1989 upon the recommendation of Dr. Irey who then 
 
            imposed permanent restrictions against his use of vibrating 
 
            hand tools, heavy lifting and repetitive hand gripping.  Dr. 
 
            Irey then attempted conservative treatment of the elbow 
 
            condition over the next several months.  This treatment 
 
            failed to alleviate claimant's pain and in September 1989, 
 
            Dr. Irey recommended release surgery of the elbow.  Claimant 
 
            sought a second opinion from William F. Blair, M.D., an 
 
            orthopaedic surgeon at the University of Iowa Hospitals and 
 
            Clinics.  Dr. Blair recommended that claimant not undergo 
 
            further surgery, but use instead an elbow pad.  Claimant 
 
            returned to Dr. Irey in October 1989.  Dr. Irey felt that if 
 
            claimant wishes, surgery could be delayed, but he would 
 
            reserve judgment until a later date.  On March 13, 1990, 
 
            claimant again returned to Dr. Irey for further evaluation.  
 
            Claimant continued to suffer the same chronic symptoms of 
 
            hand, arm, wrist and elbow pain.  At that time, Dr. Irey 
 
            decided along with claimant not to pursue the surgical 
 
            option.
 
            
 
                 Based upon the views of Dr. Irey expressed at exhibit 
 
            9a, page 20, it is specifically found that claimant did not 
 
            reach maximum healing until March 13, 1990 from the injury 
 
            of March 20, 1989.  It was not until this time that Dr. Irey 
 
            and claimant together abandoned the surgical option and 
 
            there apparently was no longer an anticipation of 
 
            improvement in claimant's elbow condition for further 
 
            treatment.  A contrary opinion by Dr. Blair rendered in 
 
            December 1989 that maximum healing had been reached in May 
 
            1989 was rejected as it apparently applied only to 
 
            claimant's carpal tunnel problems after the surgery, not to 
 
            the elbow problem.  Whether or not claimant reached maximum 
 
            healing from the carpal tunnel problem and release surgery 
 
            in May 1989 is not important as claimant returned to work 
 
            prior to that time.
 
            
 
                 Claimant failed to show that he suffered permanent 
 
            partial impairment as a result of the injury of January 31, 
 
            1987.  As a result of the injury of March 21, 1988, claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            suffered a 10 percent permanent partial impairment to the 
 
            right arm.  This is based upon the views of Robert J. 
 
            Chesser, M.D., who evaluated claimant in January 1991.  
 
            Unfortunately, Dr. Irey offered no permanent partial 
 
            impairment rating.  A contrary opinion by Dr. Blair as to 
 
            the extent of claimant's permanent partial impairment was 
 
            rejected.  Although Dr. Blair appears to have a potential 
 
            edge in credibility due to his relationship with the 
 
            University of Iowa Hospitals and Clinics, a well-known and 
 
            prestigious medical center, his written opinions are not 
 
            convincing.  At no time did he mention any objective 
 
            findings or use of an objective measurement tool.  Also, he 
 
            made no reference to his use of any standardized evaluation 
 
            guide to arrive at his opinions.  On the other hand, Dr. 
 
            Chesser stated that he measured the impairment using the 
 
            well-recognized AMA guides for evaluating impairment and 
 
            used objective measuring devices to arrive at his figures.
 
            
 
                 It is further found that claimant has suffered an 
 
            additional five percent permanent partial impairment to the 
 
            right arm as a result of the March 20, 1989 injury.  This 
 
            additional permanent partial impairment is due to claimant's 
 
            chronic elbow problems.  This additional permanent partial 
 
            impairment is over that which occurred in the prior injury.  
 
            The finding of permanent partial impairment is based upon 
 
            the views of Dr. Chesser.  His opinions are uncontroverted 
 
            with reference to the elbow condition.  Dr. Irey again made 
 
            no opinion.  It was felt from a reading of Dr. Blair's 
 
            opinion in which he rendered a five percent rating, that he 
 
            rated only the carpal tunnel syndrome problems and had made 
 
            no attempt to rate the elbow condition.
 
            
 
                                conclusions of law
 
            
 
                 I.  The claimant has the burden of proving by a 
 
            preponderance of the evidence that the work injury is a 
 
            cause of the claimed disability.  A disability may be either 
 
            temporary or permanent.  In the case of a claim for 
 
            temporary disability, the claimant must establish that the 
 
            work injury was a cause of absence from work and lost 
 
            earnings during a period of recovery from the injury.  
 
            Generally, a claim of permanent disability invokes an 
 
            initial determination of whether the work injury was a cause 
 
            of permanent physical impairment or permanent limitation in 
 
            work activity.  However, in some instances, such as a job 
 
            transfer caused by a work injury, permanent disability 
 
            benefits can be awarded without a showing of a causal 
 
            connection to a physical change of condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960).  The 
 
            opinion of experts need not be couched in definite, positive 
 
            or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding 
 
            circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case 
 
            of a preexisting condition, an employee is not entitled to 
 
            recover for the results of a preexisting injury or disease 
 
            but can recover for an aggravation thereof which resulted in 
 
            the disability found to exist.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or 
 
            unscheduled.  A specific scheduled disability is evaluated 
 
            by the functional method; the industrial method is used to 
 
            evaluate an unscheduled disability.  Martin v. Skelly Oil 
 
            Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. 
 
            DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When 
 
            the result of an injury is loss to a scheduled member, the 
 
            compensation payable is limited to that set forth in the 
 
            appropriate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it is found that claimant 
 
            suffered a ten percent permanent loss of use of his right 
 
            arm as a result of the March 21, 1988 injury.  Based upon 
 
            such a finding, claimant is entitled as a matter of law to 
 
            25 weeks of permanent partial disability benefits under Iowa 
 
            Code section 85.34(2)(m) which is ten percent of 250 weeks, 
 
            the maximum allowable for an injury to the arm in that 
 
            subsection.  As it was stipulated that claimant returned to 
 
            work on November 12, 1988, these benefits shall be paid from 
 
            that date.
 
            
 
                 It was also found that claimant suffered an additional 
 
            five percent permanent loss of use of his right arm as a 
 
            result of the March 20, 1989 injury to his right elbow.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Based upon such a finding, claimant is entitled as a matter 
 
            of law to 12.5 weeks of permanent partial disability 
 
            benefits under Iowa Code section 85.34(2)(m) which is five 
 
            percent of 250 weeks, again the maximum allowable for an 
 
            injury to the arm in that subsection.  As it was found that 
 
            claimant reached maximum healing on March 13, 1990, these 
 
            benefits shall be awarded from that date.
 
            
 
                 As claimant established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until he returns to work or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  In this case, 
 
            there was no dispute as to the healing period prior to 
 
            January 8, 1990.  It was found that claimant did not reach 
 
            maximum healing until March 13, 1990.  As claimant was off 
 
            work after he left his employment, he is entitled to healing 
 
            period benefits accordingly.
 
            
 
                 With reference to the stipulated rate of compensation, 
 
            claim reports submitted to this agency indicate that such a 
 
            rate applies only to the January 31, 1987 injury.  The 
 
            commissioner has recently directed that stipulated rates 
 
            must conform to his published rate booklet and to reports 
 
            filed with this agency.  Therefore, the rates appearing in 
 
            the reports for the March 21, 1988 and March 20, 1989 
 
            injuries will be utilized in this decision, namely $238.62 
 
            and $239.97 respectively.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 1.  As a result of the injury of March 21, 1988, 
 
            defendants shall pay to claimant twenty-five (25) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred thirty-eight and 62/100 dollars ($238.62) per week 
 
            from November 12, 1988.
 
            
 
                 2.  As a result of the injury of March 20, 1989, 
 
            defendants shall pay to claimant an additional twelve point 
 
            five (12.5) weeks of permanent partial disability benefits 
 
            at the rate of two hundred thirty-nine and 97/100 dollars 
 
            ($239.97) per week from March 14, 1990.
 
            
 
                 3.  As a result of the injury of March 20, 1989, 
 
            defendants shall pay to claimant healing period benefits 
 
            from January 8, 1990 through March 13, 1990, at the rate of 
 
            two hundred thirty-nine and 97/100 dollars ($239.97) per 
 
            week.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            disability benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the costs of this action 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file claim activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            4th Floor, Rock Island Bank Bldg.
 
            P.O. Box 4298
 
            Rock Island, Illinois  61204-4298
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            COLEN K. FJETLAND,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 939169
 
                                          :
 
            IOWA MOLD TOOLING CO., INC.,  :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS.,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Colen K. 
 
            Fjetland against Iowa Mold Tooling Company, Inc., his former 
 
            employer, and its insurance carrier, National Union Fire 
 
            Insurance.  He seeks compensation for healing period, 
 
            permanent partial disability or permanent total disability.  
 
            Claimant relies upon the odd-lot doctrine.  Claimant also 
 
            seeks to recover medical expenses in the total amount of 
 
            $963.04 for medical services which the employer contends 
 
            were unauthorized.  The case also contains an issue whether 
 
            notice of termination of weekly compensation was properly 
 
            given and a claim for penalty, all under section 86.13.  
 
            Claimant also seeks to recover costs in the total amount of 
 
            $380.52.
 
            
 
                 The case was heard at Mason City, Iowa, on January 6, 
 
            1992.  The record consists of joint exhibits 1 through 6, 
 
            claimant's exhibits 1 through 10 and defendants' exhibits A 
 
            through G.  The record also contains the testimony given at 
 
            hearing by Colen K. Fjetland, Steve Johnson, Carmen 
 
            Fjetland, Collin Fjetland, Shari Fjetland, Steve Rehmann, 
 
            Rhonda Pinneke and Karma Gibson.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Colen K. Fjetland is a 27-year-old married man who 
 
            lives at Woden, Iowa, with his wife and children.  Colen is 
 
            a high school graduate and also attended graphic arts 
 
            training at a community college but discontinued the course 
 
            shortly prior to graduation.  If he were to return to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            school, he would probably be able to complete his degree in 
 
            approximately one year.  Colen appears to be a passive 
 
            individual who avoids confrontation.  He has difficulty 
 
            carrying tasks through to completion, a characteristic which 
 
            appears to be a manifestation of a learning disability.  His 
 
            reading, math and written expression skills are not good 
 
            (claimant's exhibit 8, page c).
 
            
 
                 Colen is afflicted with a spondylolysis and 
 
            spondylolisthesis which conditions were identified when he 
 
            was a student in high school.  The spondylolisthesis has 
 
            been characterized as "grade I" by neurosurgeon David W. 
 
            Beck, M.D.  The condition is one which, by its very nature, 
 
            tends to become more symptomatic if heavy physical labor is 
 
            performed by an affected individual.  If the symptoms become 
 
            sufficiently severe, fusion surgery is the normal treatment.  
 
            Colen was treated for the back condition while in high 
 
            school and again commencing in 1984 when he was injured 
 
            while employed by Winnebago Industries.  Following that 
 
            Winnebago injury, he underwent treatment and made a nearly 
 
            full recovery.  When last seen by his treating orthopaedic 
 
            surgeon, Sterling J. Laaveg, M.D., on August 29, 1986, it 
 
            was noted that he was doing well (defendants' exhibit A, 
 
            page 6).  Activity restrictions and a six percent permanent 
 
            impairment rating were assigned.  In a subsequent letter 
 
            dated September 9, 1986, Dr. Laaveg characterized claimant 
 
            as having persistent mild symptoms (defendants' exhibit A, 
 
            page 10).
 
            
 
                 Colen commenced employment with Iowa Mold Tooling 
 
            Company, Inc., in July 1987.  He worked there without any 
 
            particular incident regarding his back until April 26, 1989.  
 
            The work was somewhat heavy in nature as shown by entries in 
 
            the records of Lyle R. Fuller, M.D., which were made in 
 
            early 1989 prior to April 26 (joint exhibit 5, page 4).  It 
 
            is found that while Colen may have had some intermittent 
 
            symptoms from time to time between 1986 and 1989, the 
 
            incidents were few, far between and relatively minor when 
 
            compared to the symptoms which have persisted since the 
 
            April 26, 1989, injury.
 
            
 
                 The employer in this case does not dispute that Colen 
 
            injured his back on April 26, 1989, while engaging in 
 
            activities which were part of the duties of his employment.  
 
            It is also clear that the injury was an aggravation of a 
 
            preexisting condition.  There is a dispute with regard to
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            whether the injury was a temporary aggravation rather than 
 
            one which produced some additional permanent disability.  
 
            The treating orthopaedic surgeon, Raymond L. Emerson, M.D., 
 
            characterized it as one which probably did not cause a 
 
            worsening of the anatomical problem (joint exhibit 4, pages 
 
            7 and 8).  The impairment rating and activity restrictions 
 
            which he imposed were essentially the same as those which 
 
            had been imposed by Dr. Laaveg in 1986.  Dr. Laaveg was 
 
            deposed as was Dr. Beck.  Both seemed to express the opinion 
 
            that if the claimant's symptomatology following the 1989 
 
            injury returned to what it had been prior to that injury, 
 
            then the injury was only a temporary aggravation, but if the 
 
            symptomatology were worsened, then the injury did have 
 
            permanent effects (joint exhibit 1, pages 10, 14 and 28; 
 
            joint exhibit 2, pages 11, 17 and 18).  Both Drs. Beck and 
 
            Laaveg appear to agree that if claimant's symptoms have 
 
            worsened sufficiently, then surgery would be appropriate 
 
            though it could possibly be avoided if Colen were to limit 
 
            himself to sedentary work (joint exhibit 1, pages 8-15 and 
 
            23; joint exhibit 2, pages 17 and 18).  Dr. Emerson appeared 
 
            to be of a similar opinion (joint exhibit 4, pages 6 and 8).  
 
            Upon a close reading of the medical evidence from Drs. 
 
            Emerson, Laaveg and Beck, it is apparent that whether or not 
 
            permanency resulted depends upon a comparison of the 
 
            pre-1989 injury symptoms with the post-1989 injury symptoms.  
 
            As previously indicated, it is found that there has been a 
 
            permanent increase in Colen's symptomatology since and as a 
 
            result of the April 26, 1989, injury.  This finding is 
 
            corroborated by the fact that Colen was given a back brace 
 
            following the injury.  The assessment made by the company 
 
            physician, Dr. Fuller, that claimant was able to resume work 
 
            without restriction effective May 30, 1989, is rejected.  
 
            The orthopaedic specialist and neurosurgeon are found to be 
 
            correct in their assessment of activity restrictions.
 
            
 
                 After being injured on April 26, 1989, Colen was 
 
            treated by the company physician, Dr. Fuller.  He was 
 
            released to resume unrestricted work effective May 15, 1989, 
 
            but was unable to tolerate the activity.  With the 
 
            permission of his employer's managerial personnel, he left 
 
            work early and was again taken off work by Dr. Fuller.  Dr. 
 
            Fuller again released Colen to resume unrestricted work 
 
            activity effective May 30, 1989.  Following the first 
 
            unsuccessful attempt to resume work, Dr. Fuller prescribed a 
 
            back brace for Colen.  Colen wore the brace to work on May 
 
            30.  When observed by supervisor Kenneth Hayworth to be 
 
            wearing the brace, Colen was sent home from work.  Colen's 
 
            testimony in this regard is corroborated by that from his 
 
            parents, spouse and Steve Johnson.  There is no reliable 
 
            evidence in the record of this case to the contrary.
 
            
 
                 There is evidence in the record from Rhonda Pinneke, 
 
            the employer's personnel assistant who testified at the 
 
            hearing.  Pinneke has made a number of irreconcilably 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            conflicting statements in this case, some of which were made 
 
            under oath.  In her answer to interrogatory number 11, she 
 
            denied that Colen showed up for work on May 30, 1989 
 
            (claimant's exhibit 7, page o).  She apparently made that 
 
            sworn statement without conducting a reasonable 
 
            investigation.  When testifying at hearing, she related that 
 
            she had no indication prior to the day of the hearing that 
 
            the claimant asserted that he had been directed to go home 
 
            from work on May 30, 1989.  Request for admission number 21 
 
            which is found at claimant's exhibit 5, page e, clearly 
 
            shows that Pinneke was asked to admit that Hayworth had told 
 
            Colen that company policy would not permit Colen to work 
 
            while wearing a back brace.  Pinneke clearly was aware of 
 
            the claimant's assertion when she responded to the request 
 
            for admission.  Hayworth was not called as a witness nor was 
 
            any attempt made to introduce his testimony for any purpose 
 
            whatsoever at the hearing.  When deposed, Pinneke testified 
 
            to claimant coming into her office on May 30, 1989, and that 
 
            he had gone home without completing the entire shift due to 
 
            back pain, yet on further examination, it was apparent that 
 
            Colen commenced his work shift at 3:30 p.m. and that Pinneke 
 
            left the plant at 5:00 p.m., well in advance of the time 
 
            when Colen was sent home (exhibit 10, pages 30-32).  Pinneke 
 
            did not maintain contemporaneous notes or otherwise make an 
 
            appropriate record of the events of which she testified, in 
 
            particular telephone conversations or visits when Colen 
 
            stopped at the plant.  Her memory is uncertain and 
 
            incomplete.  In summary, Pinneke's testimony is found to be 
 
            unreliable.
 
            
 
                 After Colen did not visit or speak with Pinneke on the 
 
            telephone frequently enough to satisfy her, she sent Colen a 
 
            notice which terminated his employment and also purported to 
 
            terminate his workers' compensation benefits, both weekly 
 
            and medical (claimant's exhibit 1).  The record clearly 
 
            shows that Colen had telephoned her on at least two 
 
            occasions on June 20 and 21, 1989, shortly before she issued 
 
            the termination notice (claimant's exhibit 3).  While Colen 
 
            did not, in all likelihood, telephone the employer every 
 
            three days following being sent home from work on May 30, he 
 
            did substantially comply with the requirement for frequent 
 
            contacts, some of which were made by stopping at the plant.
 
            
 
                 It has been previously found that the treatment 
 
            provided by Dr. Fuller was inferior to that provided by Drs. 
 
            Emerson and Beck.  The evidence from Dr. Laaveg that it was 
 
            reasonable for claimant to obtain treatment from Dr. Beck, 
 
            Dr. Emerson and to have the CT scan is accepted as being
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            fully correct (joint exhibit 2, pages 28 and 29).  All those 
 
            treatments were obtained after the time that Pinneke had 
 
            notified claimant that the employer would no longer provide 
 
            medical services to him.  Under those circumstances, it was 
 
            certainly reasonable for Colen to seek treatment from 
 
            another source.  The treatment he sought was certainly 
 
            reasonable and appropriate.  There is no question regarding 
 
            the reasonableness of the amounts charged.
 
            
 
                 Colen remained under treatment with Dr. Emerson for a 
 
            considerable amount of time.  Dr. Beck opined that Colen 
 
            reached maximum medical improvement sometime after January 
 
            of 1990 (joint exhibit 1, page 10).  Dr. Emerson was the 
 
            primary treating physician at that point in time.  According 
 
            to his notes, on December 15, 1989, Colen was directed to 
 
            continue exercising and using the low back brace.  A 
 
            follow-up appointment for two months later was scheduled.  
 
            The notes of that follow-up appointment, February 14, 1990, 
 
            indicated that Colen was doing well and should return in a 
 
            few months for a clinical follow-up.  It was on May 16, 
 
            1990, that he was noted to be doing well and no scheduled 
 
            follow-up appointments were made (joint exhibit 4, pages 2 
 
            and 3).  It was on July 6, 1990, that Dr. Emerson first 
 
            provided an impairment rating and activity restrictions.  
 
            When the office notes and the date that the impairment 
 
            rating are all considered in light of the opinion of Dr. 
 
            Beck, it is determined that it was on May 16, 1990, that Dr. 
 
            Emerson determined that further improvement from the 
 
            condition was not anticipated.
 
            
 
                 In view of the condition of his back, Colen is not 
 
            suited for performing moderate or heavy physical activity.  
 
            If he had followed the restrictions recommended by Dr. 
 
            Laaveg in 1986, he would not have been injured at Iowa Mold 
 
            Tooling Company, Inc.  At the very least, the injury of 1989 
 
            impressed upon him that it is important that he follow his 
 
            physicians' advice.  Colen's activity restrictions as 
 
            recommended by the physicians are not greatly different from 
 
            what they were in 1986.  This injury did not change them by 
 
            any large extent.  Colen has little if any ratable permanent 
 
            impairment as a result of 1989 injury.  He does have 
 
            increased symptoms and has not been provided a back brace.  
 
            Most importantly, however, he was not allowed by his 
 
            employer to resume work while wearing the back brace.  As 
 
            shown by the testimony from Karma Gibson, he has been denied 
 
            employment as a result of his work injuries.
 
            
 
                 In view of the facts which existed, namely that Colen 
 
            was sent home by Kenneth Hayworth on May 30, 1989, it was 
 
            not reasonable for his healing period compensation to be 
 
            terminated until he had reached maximum medical improvement.  
 
            His weekly compensation benefits should have continued on 
 
            well beyond the date of September 13, 1989, when they were 
 
            terminated.  While there can be good faith dispute as to the 
 
            date that the healing period actually ended and the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            existence of permanent disability, it is certain that the 
 
            healing period continued at least until February 14, 1990, 
 
            and that any earlier termination of weekly benefits was 
 
            clearly unreasonable.  The span of time from September 14, 
 
            1989, to February 14, 1990, is 22 weeks.
 
            
 
                 At Colen's age and with his educational background, he 
 
            should be able to move into the graphic arts field with 
 
            little additional training.  His ability to withstand manual 
 
            labor appears to be somewhat reduced since the 1989 injury.  
 
            His access to jobs which require any significant manual 
 
            labor appears to be notably reduced.  To obtain employment 
 
            in the graphic arts field, he will likely need to relocate.  
 
            When all pertinent factors of his earning capacity are 
 
            considered, it is determined that he has experienced a 
 
            permanent 20 percent reduction in his earning capacity as a 
 
            result of the April 26, 1990, injury.
 
            
 
                                conclusions of law
 
            
 
                 It was stipulated that claimant sustained an injury 
 
            which arose out of and in the course of his employment with 
 
            the employer.  Principal issues in the case are whether the 
 
            injury was permanent, the duration of claimant's entitlement 
 
            to weekly compensation for recuperation, the nature and 
 
            extent of any permanent disability and his right to recover 
 
            medical expenses.
 
            
 
                 It was previously found that the assessment of the case 
 
            made by Dr. Fuller was not completely correct and that the 
 
            assessments made by Drs. Beck, Emerson and Laaveg were more 
 
            accurate.
 
            
 
                 The period of recovery for purposes of healing period 
 
            ends when the employee is as far restored as the permanent 
 
            character of the injury will permit.  It ends at the time 
 
            when the physician determines that no further improvement is 
 
            anticipated.  It is not determined by looking back to the 
 
            point at which improvement 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, 65 
 
            (Iowa App. 1981).  While that point is not always readily 
 
            ascertainable, certain benchmarks such as the imposition of 
 
            an impairment rating, cessation of active medical treatment, 
 
            release from medical care on a "PRN" basis, imposition of 
 
            activity restrictions and similar matters are considered.  
 
            Dr. Beck's assessment that recuperation ended sometime after 
 
            January of 1990 is consistent with Dr. Emerson's mode of
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            treatment which released claimant effective May 16, 1990, 
 
            and rating of impairment in July 1990.  It is therefore 
 
            concluded that Colen Fjetland's entitlement to healing 
 
            period compensation commences May 2, 1989, and runs through 
 
            May 16, 1990.  Since he has been paid through September 13, 
 
            1989, he is entitled to an additional 35 weeks of healing 
 
            period compensation payable at the stipulated rate.
 
            
 
                 It has previously been found that Colen did sustain 
 
            permanent disability as a result of the April 26, 1989, 
 
            injury based upon his increased level of symptomatology and 
 
            being fitted with a back brace.  In making this 
 
            determination, the claimant's appearance and demeanor, as 
 
            well as the appearance and demeanor of the other witnesses, 
 
            was observed and considered in finding that Colen's 
 
            symptomatology did in fact increase following the April 26, 
 
            1989, injury.  In making that determination, it was 
 
            recognized that his activity restrictions and physical 
 
            impairment rating had not changed appreciably.  It is not 
 
            necessary, however, for permanent impairment to exist or 
 
            increase in order for there to be a loss of earning capacity 
 
            or permanent partial disability from an industrial 
 
            standpoint since the injury was to the body as a whole.  The 
 
            fact that Colen reported for work and was not allowed to 
 
            resume work caused a very abrupt loss of earnings.
 
            
 
                 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 v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden 
 
            v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980).
 
            
 
                 This is a case where the injury was to the body as a 
 
            whole since it was a back injury.  In view of the employer's 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            actions, it was not necessary for there to be any permanent 
 
            impairment from the injury in order to entitle the claimant 
 
            to an award of permanent partial disability.  It is 
 
            therefore concluded that Colen Fjetland is entitled to 
 
            recover permanent partial disability under the provisions of 
 
            Code section 85.34(2)(u) and that the extent of the 
 
            disability is to be measured according to Colen's loss of 
 
            earning capacity.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Loss of earning capacity is to be compensated based 
 
            upon the actual loss.  It is not computed in the terms of a 
 
            perfect man or from some point in the individual's life 
 
            which is different from the points pertinent to the case 
 
            under consideration.  The comparison is made between the 
 
            earning capacity after recuperation from the injury and the 
 
            earning capacity which existed immediately prior to the 
 
            injury.  In this case, Colen was earning a quite favorable 
 
            rate of pay at the time of injury.  While actual earnings 
 
            are strong evidence of earning capacity, this appears to be 
 
            one of those cases in which the actual earnings are not a 
 
            particularly strong indicator since Colen was violating 
 
            previously-imposed medical restrictions in order to hold the 
 
            job he was performing.  Those restrictions were imposed and 
 
            intended in order to prevent him from sustaining the type of 
 
            injury which he sustained in this case.  In view of his 
 
            preexisting condition, it was quite predictable to a 
 
            physician that heavy manual labor presented a high 
 
            probability of injury.  Colen, as a lay person, might not 
 
            have realized the importance of following the restrictions 
 
            and may have understandably relied upon his lack of symptoms 
 
            as being an indication that the work was not harmful.  If 
 
            anything, this most recent injury should have impressed upon 
 
            Colen the importance of complying with the restrictions 
 
            recommended by his physicians.  The graphic arts field seems 
 
            to be a reasonable direction for Colen to follow.  This is 
 
            not to mean that there are not other fields which would be 
 
            equally reasonable.  It would provide him with an income 
 
            which would approach what he earned with Iowa Mold Tooling 
 
            Company, Inc., but is also likely to require him to relocate 
 
            and incur higher expenses of living, particularly housing 
 
            expenses.  His history of two back injuries makes him 
 
            particularly unpalatable to employers for any type of manual 
 
            labor.  When all the pertinent factors of industrial 
 
            disability are considered, it is determined that Colen K. 
 
            Fjetland sustained a 20 percent reduction in his earning 
 
            capacity as a result of the April 26, 1989, injury.  This 
 
            entitles him to receive 100 weeks of permanent partial 
 
            disability compensation payable commencing May 17, 1990.
 
            
 
                 Colen seeks a penalty for the termination of benefits 
 
            that occurred effective September 13, 1989.  Whether the 
 
            failure to pay was unreasonable is determined by whether the 
 
            employer and its insurer had a reasonable basis in fact for 
 
            the action that was taken and whether the claim was fairly 
 
            debatable.  Dolan v. Aid Ins.. Co., 341 N.W.2d 790 (Iowa 
 
            1988); Stanley v. Wilson Foods Corp., File No. 753405 (App. 
 
            Decn., August 23, 1990).  In view of Colen's preexisting 
 
            condition, the fact that he was exceeding medical 
 
            restrictions to perform the job with this employer and the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            uncertainty regarding whether his symptoms had increased as 
 
            a result of the injury, it was not unreasonable for this 
 
            employer to deny permanent partial disability compensation.  
 
            As far as the 30-day notice is concerned, the notice is not 
 
            given until all required parts of the notice are 
 
            communicated to the claimant.  In this case, notice was 
 
            given on August 24, 1989.  The earliest permissible 
 
            termination date was September 23, 1989.  It was also 
 
            unreasonable for the employer to terminate weekly benefits 
 
            on September 13, 1989.  The earliest reasonable date for 
 
            termination of benefits which the record supports is 
 
            February 14, 1990, when claimant was seen by Dr. Emerson.  
 
            The span is 22 weeks from the date when they were actually 
 
            terminated until February 14, 1990.  In view of the 
 
            circumstances in this case, in particular that the reason 
 
            given for terminating benefits was the claimant's alleged 
 
            refusal to accept offered work and the complete lack of a 
 
            reasonable investigation, a 50 percent penalty, namely 11 
 
            weeks of benefits, is warranted under the provisions of Code 
 
            section 86.13.
 
            
 
                 Claimant seeks to recover medical expenses totalling 
 
            $963.04 as listed in the attachment to the prehearing 
 
            report.  The only defense urged is lack of authorization.  
 
            Dr. Laaveg clearly showed it to be reasonable for claimant 
 
            to have sought the treatment for which he now seeks payment.  
 
            The termination letter was quite reasonably interpreted by 
 
            Colen as telling him that the employer would not provide 
 
            further benefits.  Under those circumstances, he was free to 
 
            choose his own care limited only by the standard of 
 
            reasonableness.  The care he selected was clearly 
 
            reasonable.  The employer is therefore liable under the 
 
            provisions of Code section 85.27.
 
            
 
                 Claimant also seeks to recover costs in the total 
 
            amount of $380.52.  Claimant is entitled to recover all the 
 
            items of costs which he seeks, except $39.20 for the copy of 
 
            the deposition which was not entered into evidence.  
 
            Claimant's cost entitlement is therefore $341.32.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Colen 
 
            Fjetland thirty-five (35) weeks of compensation for healing 
 
            period disability at the stipulated rate of two hundred 
 
            eight and 11/100 dollars ($208.11) per week commencing 
 
            September 14, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Colen 
 
            Fjetland one hundred (100) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of two 
 
            hundred eight and 11/100 dollars ($208.11) per week 
 
            commencing May 17, 1990.
 
            
 
                 IT IS FURTHER ORDERED that all the foregoing 
 
            compensation for healing period and permanent partial 
 
            disability is accrued, past due and owing and shall be paid 
 
            to claimant in a lump sum together with interest pursuant to 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            section 85.30 of The Code.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Colen 
 
            Fjetland two thousand two hundred eighty-nine and 21/100 
 
            dollars ($2,289.21) representing eleven (11) weeks of 
 
            compensation as a penalty under Code section 86.13 for the 
 
            unreasonable failure to pay weekly compensation during the 
 
            period running from September 14, 1989, through February 14, 
 
            1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the following 
 
            medical expenses:
 
            
 
                 Allied Medical Accounts Control      $  267.00
 
                 St. Joseph Mercy Hospital               480.00
 
                 David Beck, M.D.                         98.00
 
                 Mason City Clinic                        64.00
 
                 Park Clinic                              54.04
 
                 Total                                $  963.04
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant the 
 
            costs of this action as follows:
 
            
 
                 Filing fee                           $   65.00
 
                 MCA Reporters, Beck deposition           50.94
 
                 MCA reporters, Pinneke deposition       147.60
 
                 Harris Reporting, Laaveg deposition      37.78
 
                 Mason City Clinic, medical report        40.00
 
                 Total                                $  341.32
 
            
 
                 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 ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Bertrand E. Gionet
 
            Attorney at Law
 
            P.O. Box 7796
 
            Des Moines, Iowa  50322
 
            
 
            Mr. Peter J. Leehey
 
            Attorney at Law
 
            801 Carver Building
 
            P.O. Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 1806; 1807; 2206
 
                                               2501
 
                                               Filed May 22, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            COLEN K. FJETLAND,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 939169
 
                                          :
 
            IOWA MOLD TOOLING CO., INC.,  :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS.,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 1806; 1807; 2206; 2501
 
            Claimant, with preexisting spondylolisthesis, sustained a 
 
            back injury.  When he was released to return to work, the 
 
            employer refused to allow him to work while wearing a back 
 
            brace.  Claimant awarded healing period and 20 percent 
 
            permanent partial disability despite no significant change 
 
            in activity restrictions or impairment rating relying upon a 
 
            theory of Blacksmith and McSpadden.
 
            Employer terminated claimant's employment for purportedly 
 
            failing to call in every three days.  The termination notice 
 
            also informed him that the employer would no longer pay any 
 
            of his medical expenses.  The employer's lack of 
 
            authorization defense to subsequently incurred medical 
 
            expenses was denied.
 
            Claimant awarded 11 weeks penalty for the difference between 
 
            when his healing period was actually terminated and the 
 
            earliest date which could have reasonably been found.  
 
            Benefits were purportedly terminated because he failed to 
 
            report to work when released by the company physician, but 
 
            the fact of the matter was that the claimant did report to 
 
            work with the back brace and was sent home.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALVIN LYONS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 939173 & 900548
 
            WILSON TRAILER COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Alvin Lyons, claimant, against Wilson Trailer 
 
            Company, employer (hereinafter referred to as Wilson 
 
            Trailer), and the Hartford Insurance Company, insurance car
 
            rier, defendants, for workers' compensation benefits as a 
 
            result of two alleged injuries on November 3, 1988 and 
 
            December 27, 1988.  On October 2, 1991, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Wilson Trailer at the time of the alleged 
 
            injuries.
 
            
 
                 2.  Claimant is not seeking temporary total disability 
 
            or healing period benefits in this proceeding.
 
            
 
                 3.  If either of the alleged injuries are found to have 
 
            caused permanent disability, the type of disability is an 
 
            industrial disability to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin on the alleged injury dates.
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits for either of the two 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injuries shall be $205.56.
 
            
 
                 6.  All medical benefits have been paid by defendants 
 
            to date.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  Whether claimant suffered the alleged injuries 
 
            arising out of and in the course of employment; and,
 
            
 
                 II.  The extent of claimant's entitlement to permanent 
 
            disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the 
 
            injuries and disability.  From his demeanor while testify
 
            ing, claimant is found credible.
 
            
 
                 Claimant has worked for Wilson Trailer since April 1978 
 
            and continues to do so at the present time.  Wilson Trailer 
 
            is a manufacturer of livestock and grain trailers.  Claimant 
 
            has held numerous jobs at Wilson Trailer.  At the time of 
 
            the first alleged work injury in November of 1988, claimant 
 
            was working in the axle department where he was required to 
 
            occasionally lift heavy break drum housings and leaf 
 
            springs.  At the time of this injury, claimant had only 
 
            recently been transferred from the job of driving a shag 
 
            tractor.  At the time of his second injury in December 1988, 
 
            claimant was performing work in the "finish out" department.  
 
            Claimant testified that he bid for this job because he 
 
            thought it would be lighter work.  However, he soon learned 
 
            that this job required heavy lifting and manhandling of very 
 
            heavy tires.  Since May 1989, claimant has been assigned to 
 
            janitorial work within his physician imposed work restric
 
            tions against heavy lifting over 20 pounds.  Claimant states 
 
            that this job is suitable for him.
 
            
 
                 On or about November 3, 1988, claimant suffered an 
 
            injury which arose out of and in the course of his employ
 
            ment at Wilson Trailer.  Claimant complained of bilateral 
 
            groin pain after lifting a heavy assembly in the axle 
 
            department.  Initially, it was the opinion of his family 
 
            physician, Cathryn Opheim, M.D., that claimant had suffered 
 
            a hernia and she referred claimant to a general surgeon, 
 
            Gary Carlton, M.D.  However, Dr. Carlton opined that 
 
            claimant had no "definite" hernia but felt that claimant 
 
            would suffer a hernia if he continued to perform heavy lift
 
            ing at work.  Dr. Carlton's diagnosis appearing on exhibit 7 
 
            was groin strain.  In January 1989, Dr. Carlton imposed a 20 
 
            pound lifting restriction.  When asked if surgery would 
 
            improve his condition and whether or not the restrictions 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            were permanent, Dr. Carlton responded to claimant that 
 
            surgery was not necessary until a hernia occurs.  In exhibit 
 
            7, the doctor indicates that claimant's work tolerance 
 
            should not improve.
 
            
 
                 Although defendants disputed the work injury, the real 
 
            fighting issue in this case is whether the 20 pound work 
 
            restriction imposed by Dr. Carlton was causally connected to 
 
            the November 3, 1988 groin strain.  Dr. Carlton states that 
 
            claimant's susceptibility to injury is due to a congenital 
 
            weakness in his groins.  He did not opine that the suscepti
 
            bility was increased or affected in any way by the November 
 
            1988 injury at work.  A chiropractor, Pat Luse, D.D.C., who 
 
            testified at hearing, opines that claimant has actual bilat
 
            eral hernias and gave claimant a permanent impairment rating 
 
            based upon these hernias.  However, his views cannot be 
 
            given greater weight over the views of a treating specialist 
 
            in general surgery.
 
            
 
                 The imposition of the lifting restrictions in January 
 
            1989, initially appeared to the undersigned connected to the 
 
            November 1988 injury because it was imposed so late in 
 
            claimant's working life.  Claimant is 60 years of age and 
 
            has been working in heavy manual labor all of his life.  If 
 
            the condition that claimant was suffering was truly congeni
 
            tal, why was not the problem found earlier.  However, the 
 
            evidence shows that claimant did, indeed, have a similar 
 
            groin pain problem six months prior to November 1988.  
 
            According to the office records of Dr. Opheim, claimant com
 
            plained of bilateral groin pain in May 1988.  The doctor 
 
            felt at that time that claimant might have suffered bilat
 
            eral hernias and referred claimant to a specialist.  
 
            Claimant never appeared for this appointment explaining to 
 
            Dr. Opheim, rather peculiarly that "he wasn't sure if the 
 
            pain was because of hernia or because of bladder problems."  
 
            Possibly, if claimant had kept the appointment, he may have 
 
            received work restrictions much earlier than the work injury 
 
            in this case.  Therefore, given the lack of a definitive 
 
            medical opinion that the work injury of November 3, 1988, 
 
            increased claimant's susceptibility to hernias and given a 
 
            prior similar complaint six months early, it cannot be found 
 
            that the work injury was a cause of the lifting restriction 
 
            imposed by Dr. Carlton to prevent the hernias in the future.  
 
            It also cannot be found for the same reasons that claimant 
 
            suffers from permanent partial impairment or any loss of 
 
            earning capacity as a result of the groin strain in November 
 
            1988.
 
            
 
                 While in the tire department, on December 27, 1988, 
 
            claimant suffered a second injury, this time to his back and 
 
            right arm while lifting heavy tires at work.  Claimant was 
 
            initially treated by a physician assistant, C. Hocum, who 
 
            diagnosed muscle strain secondary to employment.  In January 
 
            1989, claimant was seen for continuous back and arm pain by 
 
            an orthopedic surgeon, John Dougherty, M.D.  Dr. Dougherty 
 
            diagnosed tennis elbow and low back strain.  His treatment 
 
            consisted of medications and home exercises.  Claimant was 
 
            also taken off work for one week and then returned to duty.  
 
            Dr. Dougherty directed that claimant's 20 pound work 
 
            restrictions be continued indefinitely due to these prob
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            lems.  Dr. Dougherty's last appointment with claimant was in 
 
            early February 1989.  There is nothing in the medical evi
 
            dence with reference to this injury to suggest that these 
 
            back problems were anything other than work related.
 
            
 
                 In January 1989, soon after the second injury in this 
 
            case, claimant bid out of the finish department and into a 
 
            job called "roll top."  According to claimant, this was 
 
            lighter duty but still required him to, on occasion, exceed 
 
            his restrictions including the pulling of an overhead cover
 
            ing or tarp.  In this job, claimant was required to work 
 
            with another person.  Consequently, claimant relied upon 
 
            this fellow employee to perform the work that was outside of 
 
            his work restrictions.  Initially, there were no problems 
 
            and the first employee assigned to work with claimant accom
 
            modated for claimant's disability without complaint.  
 
            However, a few weeks later another person was assigned to 
 
            work with claimant that was not so tolerant.  Tension 
 
            quickly developed between claimant and this person which 
 
            eventually lead to claimant being the subject of verbal 
 
            threats of physical violence from this employee.  Claimant 
 
            then asked to be reassigned and in May 1989, with the con
 
            sent of claimant's union representatives, claimant was 
 
            transferred to a janitorial job within his restrictions.  
 
            Claimant continues to perform this job at the present time.
 
            
 
                 Claimant stated that he continues to have back and 
 
            groin pain while lifting at work.  In May 1990, claimant was 
 
            examined by Dr. Luse, who had diagnosed the hernias dis
 
            cussed above.  Dr. Luse also diagnosed at this time a lumbar 
 
            strain but gave no permanent partial impairment rating for 
 
            this condition.  In April of 1990, claimant was examined by 
 
            Vernon Helt, M.D., speciality unknown, who diagnosed persis
 
            tent back and groin pain.  In January 1991, claimant 
 
            returned to Dr. Helt who noted continued low back pain and 
 
            recommended that he be seen by a neurologist.  In April of 
 
            1991, claimant was examined by Donald Ayres, M.D., a neuro
 
            surgeon.  After testing failed to show any neurological 
 
            disorder, Dr. Ayres reported that claimant's problems were 
 
            musculoskeletal in his opinion and suggested that claimant 
 
            receive certain medications and physical therapy.  Care was 
 
            transferred by defendant to D. M. Youngblade, M.D., special
 
            ity unknown, who has to date offered no further treatment to 
 
            claimant.
 
            
 
                 It should be noted that in December 1989, claimant was 
 
            involved in an auto accident, in which he was "rear ended" 
 
            while stopped at a stop sign.  As a result of this accident, 
 
            claimant complained of pain in the base of his neck.  
 
            According to the treating physician, Dr. Youngblade, 
 
            claimant returned to his pre-accident condition soon after 
 
            the injury and suffered no permanent partial impairment or 
 
            disability from the accident.
 
            
 
                 Claimant has failed to show that he suffers permanent 
 
            partial impairment from the December 27, 1988 back and arm 
 
            injury.  No physician has opined that claimant suffers from 
 
            a permanent partial impairment.  However, it is found that 
 
            the work injury of December 27, 1988, is a significant cause 
 
            of claimant's current 20 pound work restriction.  Admit
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            tedly, this restriction occurred initially as a result of 
 
            the groin pain in November 1988.  However, claimant contin
 
            ued to work in excess of these restrictions in the finished 
 
            department.  It was not until the second injury and the con
 
            tinuation of the work restrictions by Dr. Dougherty after 
 
            the December 1988 back injury, that claimant began to stay 
 
            within his work restrictions and felt compelled to bid out 
 
            of the job into the roll top position.
 
            
 
                 With reference to industrial disability, it is found 
 
            that the work injury of December 27, 1988, is a significant 
 
            contributing factor to the permanent imposition of the 20 
 
            pound lifting restriction.  This restriction led to a job 
 
            transfer which has resulted in approximately an eight 
 
            percent loss of earnings.  Although claimant may have 
 
            requested the job transfer, this was due solely because a 
 
            fellow employee failed to understand and accommodate 
 
            claimant's disability.  Claimant should not have been placed 
 
            in this position by his employer.  Claimant's hourly rate 
 
            was $7.90 per hour at the time of the back injury.  
 
            Claimant's current job pays $.67 per hour less than his for
 
            mer job.  Claimant states that he lost a lot of overtime 
 
            opportunities from the transfer.  Claimant's supervisor tes
 
            tified at hearing that claimant had no overtime in the 
 
            December 1988 injury.  Claimant's stipulated gross weekly 
 
            rate of compensation does not appear to contain any alloca
 
            tion for overtime pay.  Also, claimant admits to receiving 
 
            some overtime in his present position.  No statistics were 
 
            introduce by claimant to make any specific findings as to 
 
            the extent of the loss of overtime.  Consequently, any award 
 
            in this proceeding cannot be based upon a claim of loss of 
 
            overtime opportunities.
 
            
 
                 Defense witnesses testified that jobs at Wilson Trailer 
 
            are available within claimant's restrictions that pay the 
 
            same as the job he held at the time of injury.  However, it 
 
            is understandable that claimant does not wish to bid on 
 
            these jobs.  Claimant's present job is suitable and is get
 
            ting along reasonably well.  Another job which may require 
 
            more demanding work, even if it is within the restrictions, 
 
            could cause him problems and he may not be able to return to 
 
            the janitor job.  There is no significant reason why 
 
            claimant should be required to change from his current 
 
            situation.
 
            
 
                 Claimant has only a tenth grade formal education.  He 
 
            earned his GED in 1974.  His work history primarily involves 
 
            manual labor and warehouseman work.  Consequently, claimant 
 
            is severely restricted from performing the type of work for 
 
            which he is best suited given his lack of formal education 
 
            and past work experience.  Claimant has limited potential 
 
            for vocational rehabilitation.  On the other hand, claimant 
 
            has motivation to remain employed.  His current job appears 
 
            suitable and stable.  He is 60 years of age and plans to 
 
            retire at age 62.  The economic impact of claimant's dis
 
            ability is not as great as would be the case for a younger 
 
            person.
 
            
 
                 Therefore, as a result of the work injury of December 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            27, 1988 and the transfer to janitorial work, claimant has 
 
            suffered a mild five percent loss of earning capacity.  This 
 
            finding is made despite the absent of finding of permanent 
 
            partial impairment as a result of a work injury.  The loss 
 
            of earning capacity was the result of a job transfer 
 
            adversely impacting upon claimant's earning capacity.
 
            
 
                                conclusions of law
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 
            to which claimant is entitled.  As the claimant has shown 
 
            that the work injury was a cause of a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  The extent to which a work injury and 
 
            a resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several fac
 
            tors.  These factors include the employee's medical condi
 
            tion 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 intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, 
 
            Inc., (Appeal Decision, February 28, l985).
 
            
 
                 It is well settled that a transfer to a lower paying 
 
            job as a result of a work injury is compensable even without 
 
            a showing of permanent partial impairment.  McSpadden v. Big 
 
            Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (1980).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered only a five percent loss of earning capacity as a 
 
            result of the work injury.  Based upon such finding, 
 
            claimant is entitled as a matter of law to 25 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is five percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                                      order
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 1.  Defendants shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred five and 56/l00 dollars ($205.56) per week 
 
            from December 27, 1988.
 
            
 
                 2.  Defendants shall pay the accrued weekly benefits in 
 
            a lump sum.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City  IA  51102
 
            
 
            Mr. Brian L. Yung
 
            Attorney at Law
 
            550 29th St  STE 200
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed November 5, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALVIN LYONS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 939173 & 900548
 
            WILSON TRAILER COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.