Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICK NOBLE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 940638
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Rick 
 
            Noble, claimant, against Firestone Tire & Rubber Co., 
 
            employer, and Cigna, insurance carrier, to recover benefits 
 
            under the Iowa Workers' Compensation Act as a result of an 
 
            injury sustained on January 29, 1990.  This matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on May 13, 1991, in Des Moines, Iowa.  The 
 
            matter was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of the testimony 
 
            of claimant, Rick Noble, and joint exhibits 1, 1A, 1B 
 
            through 7.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on May 13, 1991, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on January 29, 
 
            1990, which arose out of and in the course of employment 
 
            with employer; and
 
            
 
                 2.  Whether the alleged injury is the cause of 
 
            temporary disability.
 
            
 
                 The parties have stipulated that claimant's alleged 
 
            injury is not a cause of permanent disability; that his time 
 
            off work due to the alleged injury was from January 29, 1990 
 
            to February 26, 1990; that his rate of weekly compensation 
 
            is $471.30; and that he received sick pay/disability income 
 
            in the amount of $1,002.86.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on May 24, 1959, and completed the 
 
            eleventh grade of school.  His past work activity was as a 
 
            sider/house framer and car detailer.  On April 8, 1988, he 
 
            went to work for Firestone Tire and Rubber Manufacturing 
 
            Company.  He worked as a tire builder until February 26, 
 
            1990, and since then has been a carcass assembler.
 
            
 
                 Claimant testified that on January 29, 1990, while 
 
            putting an eight foot 60 pound edge on a tire he experienced 
 
            pain in his left shoulder blade and chest.  He reported the 
 
            incident to his supervisor.  The medical team was called and 
 
            claimant was transported via ambulance to Mercy Hospital in 
 
            Des Moines, Iowa.
 
            
 
                 While at Mercy Hospital, a chest x-ray was performed 
 
            and read by Vera Stewart, M.D.  It showed 5 percent left 
 
            apical pneumothorax (Exhibit 4, page 16).
 
            
 
                 Claimant was transferred from Mercy Hospital to Iowa 
 
            Lutheran Hospital on January 29, 1990.  He was attended by 
 
            Lawrence Valin, M.D.  A repeat chest x-ray was performed on 
 
            January 30, 1990, and showed a small pneumothorax in the 
 
            left chest extending from the base to the apex and a small 
 
            amount of fluid in the left base.  Claimant's chest pain and 
 
            dyspnea subsided and he was discharged from the hospital on 
 
            January 30, 1990.  A week later, a repeat chest x-ray showed 
 
            some improvement and two weeks later on February 12, 1990, 
 
            the pneumothorax had completely resolved (Ex. 5).
 
            
 
                 Claimant was referred by Dr. Valin to Steven Zorn, 
 
            M.D., for a comprehensive evaluation on March 28, 1990.  
 
            After reviewing the claimant's medical history, Dr. Zorn 
 
            conducted a physical examination and pulmonary function 
 
            studies.  His impression was "mild small airway obstruction 
 
            with good response to bronchodilators.  The minimal small 
 
            airway obstruction is related to inflammation from his 
 
            cigarette smoking."  A chest x-ray was within normal limits 
 
            with no evidence of recurrent pneumothorax.  Dr. Zorn 
 
            opined:
 
            
 
                    I believe that Mr. Rick Noble had a ball valve 
 
                 lesion in the left lung, related to inflammation 
 
                 from his cigarette smoking and a recent upper 
 
                 respiratory tract infection on or about January 19 
 
                 of 1990.  I do believe, however, that the exertion 
 
                 of lifting the 60 pound weight resulted in 
 
                 increased thoracic pressure
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and is likely to be the precipitating factor in 
 
            producing his pneumothorax while at work at 
 
            Firestone Rubber and Tire on January 19, 1990.
 
            
 
            (Ex. 2)
 
            
 
                 It is noted that even though Dr. Zorn stated in his 
 
            report that the injury occurred on January 19, 1990, the 
 
            parties agreed that the employer's first report of injury 
 
            and the remaining medical reports all indicate January 29, 
 
            1990, as the injury date (Ex. 1A).
 
            
 
                 At employer's request, claimant was seen by Gregory A. 
 
            Hicklin, M.D., a pulmonologist, on October 9, 1990, for 
 
            evaluation.  After reviewing claimant's medical history, a 
 
            physical examination was conducted and was within normal 
 
            limits.  Dr. Hicklin found no evidence of any permanent 
 
            functional impairment and noted resolution of pneumothorax 
 
            on February 12, 1990.  He stated that, "It is my opinion 
 
            that his cigarette smoking and probably small apical bullous 
 
            disease were the factors which contributed to the 
 
            pneumothorax." (Ex. 1, p. 3)
 
            
 
                 On November 19, 1990, Dr. Hicklin reported as follows:
 
            
 
                    It is my opinion, again, based on a reasonable 
 
                 degree of medical certainty, that it is purely 
 
                 coincidence that he suffered this pneumothorax 
 
                 while at work.  The cause of the pneumothorax is a 
 
                 structural abnormality in the lung, which has 
 
                 resulted           in weakness of the lung and a 
 
                 predisposition to pneumothorax.  It is not 
 
                 activity related, but could just have easily 
 
                 happened during any activity or during no activity 
 
                 at all.
 
            
 
            (Ex. 1)
 
            
 
                                conclusions of law
 
            
 
                 The only issue to be decided by the undersigned is 
 
            whether claimant suffered a work-related injury on January 
 
            29, 1990, which caused temporary total disability resulting 
 
            in time off work from January 29, 1990 through February 26, 
 
            1990.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on January 29, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 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.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 29, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment. 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist, 218 Iowa 724, 254 N.W.  
 
            See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 
 
            139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 
 
            731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
            (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 
 
            (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591.
 
            
 
                 An employer takes an employee subject to any active or 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 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, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591.  See also Barz, 257 Iowa 508, 133 N.W.2d 704; Almquist, 
 
            218 Iowa 724, 254 N.W. 35.
 
            
 
                 The record in this case clearly demonstrates that on 
 
            January 29, 1990, the claimant reported to work on the C 
 
            shift at 3:00 p.m. and while putting an edge on a farm tire, 
 
            he developed a sudden onset of left shoulder blade pain and 
 
            left chest pain.  He developed shortness of breath and 
 
            sweating.  He was taken to Mercy Hospital where a chest 
 
            x-ray showed a left pneumothorax.  He was then transferred 
 
            to Lutheran Hospital for twenty-four hour observation and 
 
            discharged the next day.  He returned to work on February 
 
            26, 1990, and has worked without incident since that time.  
 
            He is on no medication and is currently asymptomatic.  Prior 
 
            to this incident, he had no history of chest wall trauma, 
 
            fractured ribs or pneumothorax.
 
            
 
                 Claimant has proved by a preponderance of the evidence 
 
            that he received an injury on January 29, 1990, which arose 
 
            out of and in the course of his employment with employer.  
 
            Despite contradictory medical evidence from pulmonary 
 
            experts, the undersigned concludes that claimant has also 
 
            proved by a preponderance of the evidence that the injury 
 
            was causally related to his temporary disability and such 
 
            injury is compensable under the Iowa Workers' Compensation 
 
            Act.  As previously noted, Dr. Zorn felt that the act of 
 
            lifting a 60 pound weight resulted in increased thoracic 
 
            pressure and was the likely precipitating factor in 
 
            producing claimant's pneumothorax.  In opposition, Dr. 
 
            Hicklin stated that claimant had a preexisting lung weakness 
 
            and a predisposition to pneumothorax and it was merely 
 
            coincidental that the event occurred at work.  Be that as it 
 
            may, the fact is that the incident did occur during the 
 
            course of claimant's employment and the activity he was 
 
            engaged in at the time probably aggravated his abnormal lung 
 
            condition.  An employer takes an employee subject to any 
 
            activity or dormant health impairments, any work-connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., supra.  While it is true that the 
 
            incident could have just as easily happened during any 
 
            activity or during no activity at all, the incident happened 
 
            while the claimant was at work and was a substantial factor 
 
            in brining about the pneumothorax.  Blacksmith v. All 
 
            American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 Accordingly, claimant is entitled to 4.143 weeks of 
 
            temporary total disability benefits at the stipulated rate 
 
            of $471.30 during the period from January 29, 1990 through 
 
            February 26, 1990.  Defendants are entitled to a credit of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            $1,002.86 under section 85.38(2) for previous payment of 
 
            sick pay/disability benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant four point one four 
 
            three (4.143) weeks of temporary total disability benefits 
 
            for the period from January 29, 1990 through February 26, 
 
            1990, at a rate of four hundred seventy-one and 30/100 
 
            dollars ($471.30) per week.
 
            
 
                 That defendants shall receive credit under section 
 
            85.38(2).
 
            
 
                 Benefits that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            1913 Ingersoll Ave
 
            Des Moines IA 50309-3320
 
            
 
            Mr Jeff M Margolin
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108.50; 5-1801
 
                      Filed May 31, 1991
 
                      Jean M. Ingrassia
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICK NOBLE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 940638
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108.50; 5-1801
 
            Claimant found to have sustained a work-related injury which 
 
            was the cause of temporary disability entitling claimant to 
 
            4.143 weeks of benefits.  No permanency alleged.
 
            Claimant, with a preexisting lung weakness, while lifting a 
 
            60 pound farm tire, experienced a sudden onset of left 
 
            shoulder blade pain and left chest pain.  X-rays showed a 
 
            left pneumothorax.  Claimant was off work and his symptoms 
 
            resolved.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTOPHER G. GANNON,        :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 940647
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            COMMTRON CORPORATION,         :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            WAUSAU INS. CO.,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the June 13, 
 
            1990 petition of Christopher G. Gannon for benefits under 
 
            the Iowa Workers' Compensation Act from defendant employer 
 
            Commtron Corporation and its insurance carrier, Wausau 
 
            Insurance Companies.  Claimant sustained a back injury on 
 
            July 14, 1989.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            July 15, 1991.  The record consists of joint exhibits A 
 
            through O, inclusive, and the testimony of claimant, Mary 
 
            Grant and David Munoz.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with Commtron Corporation on July 14, 1989, and that the 
 
            injury caused temporary disability from September 22, 1989 
 
            through November 29, 1989.  The parties have also stipulated 
 
            to a weekly benefit rate of $245.25 and agree that all 
 
            requested medical benefits have been or will be paid by 
 
            defendants.  Defendants paid certain benefits prior to 
 
            hearing on a voluntary basis.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether the work injury caused permanent 
 
            disability; and,
 
            
 
                 2.  If so, the extent of claimant's industrial 
 
            disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            finds:
 
            
 
                 Christopher G. Gannon, 31 years of age at hearing, is a 
 
            1978 high school graduate who earned a two-year associate of 
 
            applied arts and sciences degree in agricultural management 
 
            in the year 1980.
 
            
 
                 Claimant comes from a farm background and is now, along 
 
            with his parents and 13 siblings, a shareholder in Gannon 
 
            Farms, a family corporation.  Claimant has worked on the 
 
            family farm all of his life and on a full-time basis for 
 
            wages for some years ending in 1986.  Gannon Farms is a 
 
            grain and livestock operation and claimant has experience in 
 
            all of the duties attendant thereto, including management.
 
            
 
                 Claimant has also worked in fertilizer sales and 
 
            application for two different companies, as a bridge 
 
            construction worker off and on, has operated a T-shirt sales 
 
            enterprise as a teenager, and is now a partner in a 
 
            fledgling toy wholesaling business.
 
            
 
                 Commtron Corporation is a large video and electronics 
 
            business.  A major part of its market consists of furnishing 
 
            videotapes and electronic gear to local video rental 
 
            enterprises.  Claimant began work as a telephone sales 
 
            representative on January 5, 1987, and has enjoyed a 
 
            successful career continuing until the present day.  He is 
 
            clearly considered a highly motivated and superior employee.  
 
            He started at an hourly wage of $5.00 and is now earning 
 
            $8.27 with frequent bonuses, perhaps in the range of $200 
 
            per month.  Continued employment seems reasonably secure, 
 
            but claimant has shown some interest in seeking other work 
 
            and has submitted job applications elsewhere.  Still, his 
 
            resume submitted into evidence was brought current in hand 
 
            printing, an indication that claimant is not vigorously 
 
            seeking a job change.
 
            
 
                 Prior to the date of injury, July 14, 1989, claimant 
 
            did not suffer any limitation in his activities on account 
 
            of back problems, although medical records indicate he may 
 
            have had some complaints.  However, claimant does have a 
 
            history of emotional disturbance, including several 
 
            hospitalizations.  Two MMPIs have been interpreted as 
 
            grouping claimant with persons prone to suffer physical 
 
            maladies not always traceable to organic cause.  In 
 
            particular, claimant has complained of wide-ranging numbness 
 
            and other problems of undetermined etiology.
 
            
 
                 Claimant injured his back while lifting a box of 
 
            magazines as a favor to a fellow worker, not as part of his 
 
            own job.  Based on a diagnosis of herniated disc at L4-5, he 
 
            underwent automatic percutaneous surgery to that disc on 
 
            September 22, 1989.  The surgeon was William R. Boulden, 
 
            M.D.  However, symptoms worsened following the procedure, 
 
            leading Dr. Boulden to perform open back surgery on October 
 
            20, 1989, a partial discectomy at L4-5 on the right with fat 
 
            graft.
 
            
 
                 Dr. Boulden eventually assessed claimant as having 
 
            sustained a ten percent "disability" to the back and has not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            imposed specific physical restrictions, other than writing 
 
            to defendant Wausau that claimant should "refrain from 
 
            sitting too much," as he believed extensive sitting was the 
 
            main problem causing continued pain as of March 28, 1990.
 
            While this is the only restriction Dr. Boulden has set forth 
 
            in writing, the record does not show that this is the only 
 
            restriction that doctor intended.  After all, the nature of 
 
            claimant's job renders typical restrictions given to back 
 
            patients irrelevant.  Only light lifting, perhaps ten 
 
            pounds, is involved and claimant can alternate sitting and 
 
            standing at will.  Commtron has made an effort to provide a 
 
            comfortable chair, although claimant preferred the standard 
 
            model.  Verbally, Dr. Boulden advised claimant against 
 
            jumping and running involved in sports or fast moving.  
 
            Bowling was out, but claimant could golf.  Claimant 
 
            testified Dr. Boulden suggested a lifting limit of 20 pounds 
 
            with no shoveling, bending or climbing.
 
            
 
                 Although defendants made an effort to cast doubt on 
 
            claimant's credibility, the effort failed in the eyes of 
 
            this observer.
 
            
 
                 Claimant was also seen for evaluation by Jerome G. 
 
            Bashara, M.D., on August 24, 1990.  Dr. Bashara assessed a 
 
            12 percent impairment rating to the body as a whole and 
 
            recommended restrictions against lifting in excess of 25 
 
            pounds and repetitive or excessive bending, stooping and 
 
            twisting of the lower back.
 
            
 
                 Claimant currently complains of pain down the right leg 
 
            to his ankle, tension in his lower back on the right side 
 
            and constant dull pain in the right ankle, all symptoms that 
 
            did not preexist the work injury.  While he has given up 
 
            sports involving running and jumping and limits his lifting, 
 
            it is fortunate that he is able to perform his job 
 
            successfully despite his impairment.
 
            
 
                                conclusions of law
 
            
 
                 Defendants dispute whether the admitted work injury 
 
            caused any permanent industrial disability.  This, despite 
 
            the fact that claimant has undergone two back surgeries and 
 
            is rated by two competent orthopaedic surgeons as having 
 
            sustained physical impairment in the range of 10-12 percent 
 
            of the body as a whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 The assertion that claimant has not sustained 
 
            industrial disability is unpersuasive.  The mere fact that 
 
            he is now earning wages in excess of his pre-injury earnings 
 
            does not show that earning capacity has not been damaged.  
 
            Loss of earning capacity is not necessarily equivalent to 
 
            actual loss of earnings.  Eldrenkamp v. Archer Daniels 
 
            Midland, file number 797085 (App. Decn., May 31, 1990).  
 
            Although Dr. Boulden has not formally imposed restrictions, 
 
            except against extended sitting, he has verbally suggested 
 
            restrictions to claimant.  If claimant had been working a 
 
            more physically demanding job, this writer suspects that Dr. 
 
            Boulden might have formalized those suggestions.  The 
 
            restrictions suggested by Dr. Bashara seem much more 
 
            consistent with prior agency experience in cases of multiple 
 
            back surgery.
 
            
 
                 It is unlikely that claimant could return to his former 
 
            work as bridge construction worker, fertilizer applicator or 
 
            grain and livestock farmer due to the restrictions suggested 
 
            by Dr. Bashara (and also, this writer believes, by Dr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Boulden).  It is unlikely to a high degree that claimant 
 
            would have returned to any of those jobs, even had he not 
 
            been injured (his responses to incomplete sentences in a 
 
            psychological evaluation of July 22, 1988 reveal something 
 
            of a preoccupation with his career at Commtron), but this is 
 
            nonetheless potential source of earnings now foreclosed.  It 
 
            is probable that claimant's history of back surgery makes 
 
            him a less attractive potential employee in the eyes of at 
 
            least some employers.
 
            
 
                 On the other hand, claimant is now earning more than he 
 
            was prior to the injury and defendants have been able to 
 
            keep him successfully employed, despite that injury.  
 
            Considering these factors in specific then, and the record 
 
            otherwise in general, it is held that claimant has sustained 
 
            a permanent industrial disability equivalent to 20 percent 
 
            of the body as a whole, or 100 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred forty-five and 25/100 dollars 
 
            ($245.25) per week commencing November 30, 1989.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            480 6th Street
 
            P.O. Box 209
 
            Waukee, Iowa  50263
 
            
 
            Ms. Valerie A. Fandel
 
            Mr. Marvin E. Duckworth
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed July 18, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHRISTOPHER G. GANNON,   :
 
                      :
 
                 Claimant, :
 
                      :         File No. 940647
 
            vs.       :
 
                      :      A R B I T R A T I O N
 
            COMMTRON CORPORATION,    :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            WAUSAU INS. CO.,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Twenty-nine-year-old claimant with associates degree, highly 
 
            motivated, worked on family farm, in bridge construction, 
 
            and in fertilizer sales and application prior to accepting 
 
            work as wholesale telemarketer for defendant.  He remains so 
 
            employed and is a highly valued employee.
 
            Claimant suffered back injury resulting in two surgical 
 
            procedures.  Treating surgeon did not formally impose 
 
            restrictions, except as to excessive sitting, but verbally 
 
            recommended against running, jumping, shoveling, bending, 
 
            climbing or lifting over 20 pounds.  Evaluating physician 
 
            suggested similar restrictions.  Claimant's current job is 
 
            sedentary, but he would be barred from his previous jobs.  
 
            Impairment ratings were 10-12 percent.
 
            Industrial disability of 20 percent awarded.
 
            
 
 
         
 
                
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         DARREL L. BELZER,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                  File No. 940648
 
         S & H TRANSPORTATION, INC.,   
 
                                                   A P P E A L
 
              Employer, 
 
                                                 D E C I S I O N
 
         and       
 
                   
 
         LIBERTY MUTUAL INSURANCE,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 17, 1992 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant and defendants shall share equally the costs of the 
 
         appeal, including the preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1993.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schilling
 
         Attorney at Law
 
         P O Box 821
 
         205 Washington Street
 
         Burlington, Iowa  52601
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East 3rd Street
 
         Davenport, Iowa  52801
 
         
 
 
            
 
 
 
                
 
 
 
 
 
                                        5-1803; 3000; 4000.2; 4100
 
                                        Filed July 29, 1993
 
                                        BYRON K. ORTON
 
                      
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DARREL L. BELZER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 940648
 
            S & H TRANSPORTATION, INC.,   
 
                                                    A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                    
 
            4100
 
            Citing Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985) and Hainey v. Protein Blender, 445 N.W.2d 398, 400 
 
            (Iowa App. 1989) it was determined that claimant failed to 
 
            make a prima facie showing that he is totally disabled and 
 
            cannot compete in the labor market available to him. 
 
            On February 22, 1990, claimant was injured in an 
 
            automobile-pedestrian accident while in the course of his 
 
            employment and sustained a brain injury.  After intensive 
 
            therapy and rehabilitation claimant was able to pursue 
 
            part-time employment in the soil conservation office and in 
 
            November 1991 he resumed management of his trucking 
 
            business.  Claimant is restricted from commercial driving 
 
            but hires workers to drive his two trucks.  Claimant leases 
 
            his trucks to S & H Transportation.  In 1990 his gross 
 
            receipts totaled $106,830 and in 1991, $176,313.  Claimant's 
 
            attorney argued this should be viewed as investment income 
 
            rather than earnings.  However, claimant is actively 
 
            involved as an owner-operator, keeps the company books and 
 
            records and works at least 20 hours a week.
 
            
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            5-1803
 
            Based on all the factors used to determine industrial 
 
            disability, including age (46-48); education (high school 
 
            graduate); past work experience (owner-operator trucking 
 
            business and trucker); pre and post injury wages; motivation 
 
            and ability to work; restrictions (memory deficits); and 
 
            loss of earning capacity; it was determined claimant is 75 
 
            percent industrially disabled and he was awarded 375 weeks 
 
            of permanent partial disability benefits.
 
            
 
            
 
            3000
 
            Claimant was an owner-operator (truck driver) at the time of 
 
            his injury.  The Iowa Supreme Court in D & C Express, Inc. 
 
            v. Sperry, 450 N.W.2d 842 (Iowa 1990), stated as follows:
 
                 Is is not absurd to deduct known expenses to arrive at 
 
            actual wages. ...Many factors such as interest paid, 
 
            depreciation, [and other matter] enter into a determination 
 
            of taxable income that would not be applicable to determine 
 
            actual wages...
 
            Applying Sperry, claimant's 1989 income tax returns were 
 
            examined.  The Schedule C showed gross receipts of $102,458.  
 
            It also showed expenses of $48,243.  When total expenses are 
 
            deducted from gross receipts claimant's net income was 
 
            $54,215.  Dividing $54,215 by 52 weeks yields a figure of 
 
            $1043 per week.  Using the rate table for July 1, 1989, 
 
            claimant's rate is $559.08 per week.
 
            
 
            
 
            4000.2
 
            Claimant's supervisor was immediately notified of his injury 
 
            and hospitalization.  However, the insurance carrier delayed 
 
            payment of healing period benefits for 4 1/2 months arguing 
 
            that they needed this time to investigate whether claimant 
 
            was an employee or an independent contractor.  Iowa Code 
 
            section 85.30 provides that compensation payments shall be 
 
            made each week beginning on the eleventh day after the 
 
            injury.  Defendants' argument is without merit and their 
 
            delay in awarding healing period benefits is unreasonable 
 
            and without good cause.  A 50 percent penalty (9 weeks) 
 
            assessed.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                               4100 51803 3000 4000.2
 
                                               Filed June 17, 1992
 
                                               Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DARRELL L BELZER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 940648
 
            S & H TRANSPORTATION, INC.,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            4100
 
            Citing Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985) and Hainey v. Protein Blender, 445 N.W.2d 398, 400 
 
            (Iowa App. 1989) it was determined that claimant failed to 
 
            make a prima facie showing that he is totally disabled and 
 
            cannot compete in the labor market available to him. 
 
            On February 22, 1990, claimant was injured in an 
 
            automobile-pedestrian accident while in the course of his 
 
            employment and sustained a brain injury.  After intensive 
 
            therapy and rehabilitation claimant was able to pursue 
 
            part-time employment in the soil conservation office and in 
 
            November 1991 he resumed management of his trucking 
 
            business.  Claimant is restricted from commercial driving 
 
            but hires workers to drive his two trucks.  Claimant leases 
 
            his trucks to S & H Transportation.  In 1990 his gross 
 
            receipts totaled $106,830 and in 1991, $176,313.  Claimant's 
 
            attorney argued this should be viewed as investment income 
 
            rather than earnings.  However, claimant is actively 
 
            involved as an owner-operator, keeps the company books and 
 
            records and works at least 20 hours a week.
 
            
 
            51803
 
            Based on all the factors used to determine industrial 
 
            disability, including age (46-48); education (high school 
 
            graduate); past work experience (owner-operator trucking 
 
            business and trucker); pre and post injury wages; motivation 
 
            and ability to work; restrictions (memory deficits); and 
 
            loss of earning capacity; it was determined claimant is 75 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            percent industrially disabled and he was awarded 375 weeks 
 
            of permanent partial disability benefits.
 
            
 
            3000
 
            Claimant was an owner-operator (truck driver) at the time of 
 
            his injury.  The Iowa Supreme Court in D & C Express, Inc. 
 
            v. Sperry, 450 N.W.2d 842 (Iowa 1990), stated as follows:
 
                 
 
                 Is is not absurd to deduct known expenses to arrive at 
 
            actual wages. ...Many factors such as interest paid, 
 
            depreciation, [and other matter] enter into a determination 
 
            of taxable income that would not be applicable to determine 
 
            actual wages...
 
            
 
            Applying Sperry, claimant's 1989 income tax returns were 
 
            examined.  The Schedule C showed gross receipts of $102,458.  
 
            It also showed expenses of $48,243.  When total expenses are 
 
            deducted from gross receipts claimant's net income was 
 
            $54,215.  Dividing $54,215 by 52 weeks yields a figure of 
 
            $1043 per week.  Using the rate table for July 1, 1989, 
 
            claimant's rate is $559.08 per week.
 
            
 
            4000.2
 
            Claimant's supervisor was immediately notified of his injury 
 
            and hospitalization.  However, the insurance carrier delayed 
 
            payment of healing period benefits for 4 1/2 months arguing 
 
            that they needed this time to investigate whether claimant 
 
            was an employee or an independent contractor.  Iowa Code 
 
            section 85.30 provides that compensation payments shall be 
 
            made each week beginning on the eleventh day after the 
 
            injury.  Defendants' argument is without merit and their 
 
            delay in awarding healing period benefits is unreasonable 
 
            and without good cause.  A 50 percent penalty (9 weeks) 
 
            assessed.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY SCOTT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940651
 
            ANDERSON ERICKSON DAIRY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On June 29, 1990, Larry Scott (claimant) filed a 
 
            petition for arbitration as a result of an injury to 
 
            claimant's back occurring on September 4, 1989.  Anderson 
 
            Erickson Dairy (AE) was identified as employer and Employers 
 
            Mutual Companies were identified as the workers' 
 
            compensation insurer for AE (collectively defendants).  On 
 
            August 23, 1991, these matters came on for hearing in Des 
 
            Moines, Iowa.  The parties appeared as follows:  the 
 
            claimant in person and by his counsel Channing Dutton of Des 
 
            Moines, Iowa and AE and Employers by their counsel D. Brian 
 
            Scieszinski of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant.  
 
            
 
                 2.  Joint exhibits 1, and 3-13.
 
            
 
                                   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.
 
            
 
                 b.  The claimant sustained an injury on September 4, 
 
            1989, which arose out of and in the course of employment.
 
            
 
                 c.  The alleged injury is a cause of temporary 
 
            disability.
 
            
 
                 d.  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.
 
            
 
                 e.  The rate of compensation, in the event of an award, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            is $336.18 per week based on a gross weekly wage of $532.00 
 
            per week. Claimant is married and has three children.  He is 
 
            entitled to four exemptions.
 
            
 
                 f.  All requested medical benefits have been or will be 
 
            paid by the defendants.
 
            
 
                 g.  Defendants have paid 39.4285 weeks of workers' 
 
            compensation benefits to claimant at the rate of $336.18 per 
 
            week prior to hearing.
 
            
 
                 h.  The parties agree on the amount of costs to be 
 
            taxed.
 
            
 
                                     ISSUES
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether the work injury is the cause of permanent 
 
            disability.
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for temporary total disability benefits or healing period 
 
            benefits.
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability if defendants are liable for the 
 
            injury and the commencement date for benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  Claimant at the time of his injury was 38 years 
 
            old.  At the time of hearing, claimant was 40.  He is a high 
 
            school graduate from Mayfield High School in Homer, 
 
            Louisiana.  Claimant has had no post high school training.  
 
            Claimant was in the Marine Corps for two years and received 
 
            an honorable discharge.  He was an inventory clerk, a diesel 
 
            truck driver and a heavy equipment mechanic during his 
 
            military service.
 
            
 
                 2.  Claimant's past employment history includes car 
 
            prep work for a car dealer in Houston, material handler work 
 
            for John Deere, factory work making drain tile, concrete 
 
            work, fast-food restaurant work, a sewage treatment plant 
 
            helper for the city of Des Moines, a cable installer for 
 
            Heritage Cablevision, a bill collector for Heritage Cable, a 
 
            salesperson for Colortyme, and a sales associate for Super 
 
            Rent.  Claimant was fired from his job with John Deere 
 
            because of a fight.  Claimant was terminated from his 
 
            position with Heritage because of a disagreement with a 
 
            supervisor, and he was terminated from his position with 
 
            Colortyme because of a dispute with the manager.
 
            
 
                 3.  Claimant's prior health history includes a broken 
 
            right leg and several bouts of bronchitis.  Claimant has 
 
            also had a back injury while he was working at John Deere in 
 
            1973.  As a result of the 1973 injury, claimant was given a 
 
            restriction of no heavy lifting.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 4.  Claimant began his employment as a route sales 
 
            person with AE in September of 1987.  Claimant's 
 
            preemployment physical was normal and he could perform any 
 
            type of work.  Plain x-ray studies of his lumbosacral spine 
 
            were made and found to be normal.  His duties were to 
 
            deliver dairy products to customers along a route on the 
 
            south side of Des Moines and in Norwalk.  For retail 
 
            customers, claimant was required to go into the store, 
 
            survey existing product and restock where necessary, take 
 
            expired products off the shelf and replace them.  Claimant 
 
            was also required to load and sort product in his truck 
 
            before he started his route.  Claimant estimated that a case 
 
            of milk weighed anywhere from 30 and 45 pounds depending 
 
            upon the product.  Once claimant arrived at a location, 
 
            claimant generally delivered his product with a hand cart.  
 
            
 
                 5.  On September 4, 1989, claimant was delivering 
 
            product at the Git-N-Go.  It was a rainy day and there was 
 
            water on the floor in the store.  Claimant was backing in 
 
            over the door jamb and he slipped and fell.  When he fell, 
 
            the two wheeler loaded with product fell on top of him.  The 
 
            store clerk, Dawn Doreshimer, witnessed this incident and 
 
            corroborated claimant's explanation of the injury.  At the 
 
            time of the injury, claimant had pain in his low back, right 
 
            shoulder, rib cage and wrist but the pain was not severe.  
 
            After the incident, claimant was examined by Lewis W. 
 
            Eirinberg, M.D., on September 5, 1989. 
 
            
 
                 6.  Dr. Eirinberg indicated that claimant had pain 
 
            complaints in his low back, right ribs and left wrist.  
 
            X-ray films taken by Dr. Eirinberg of claimant's lumbosacral 
 
            spine were negative.  Dr. Eirinberg's initial assessment was 
 
            that claimant had a low back strain.  Claimant was taken off 
 
            work for the rest of the week.  A CT scan obtained on 
 
            September 26, 1989 showed that from the third lumbar level 
 
            to the first sacral segment, claimant's spine was normal.  
 
            Claimant continued his treatment with Dr. Eirinberg until 
 
            October when he concluded that there was nothing further he 
 
            could do for claimant since Dr. Eirinberg could not identify 
 
            the source of claimant's pain.  Claimant was then referred 
 
            to William R. Boulden, M.D., for further treatment.
 
            
 
                 7.  Dr. Boulden examined claimant on October 17, 1989.  
 
            Claimant described his accident and indicated that his most 
 
            significant area of pain was in the low back.  After an 
 
            examination, Dr. Boulden found that claimant was suffering 
 
            from myofascial pain with no evidence of neural entrapment.  
 
            He recommended a stabilization exercise program, a walking 
 
            program and then a re-evaluation to determine claimant's 
 
            progress.  Dr. Boulden recommended a conservative course of 
 
            treatment and on November 21, 1989, Dr. Boulden determined 
 
            that claimant was ready for a work hardening program.  
 
            However, claimant was not diligent in his attendance to 
 
            physical therapy and he was dropped from the work hardening 
 
            program on January 8, 1990.  
 
            
 
                 8.  Claimant had a functional capacity evaluation on 
 
            January 18, 1990 that was at the least conditionally valid 
 
            and bordering on the verge of being invalid.  The data 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            collected indicated that claimant gave a submaximal effort.  
 
            Thomas W. Bower, L.P.T.,  concluded that claimant was 
 
            extremely fixated on pain and magnifying symptoms.  The 
 
            results of the evaluation were inconsistent and extremely 
 
            unusual (Ex. 1, p. 20).  Because of claimant's theatrics, 
 
            Mr. Bower was not sure that there was true accountability 
 
            for the patient's overall assessment of function.  Mr. Bower 
 
            questioned claimant's motivation to improve because of 
 
            several missed appointments during the course of his 
 
            physical therapy treatment.  Finally, Mr. Bower believed 
 
            that there were many outside factors affecting the 
 
            claimant's overall lifestyle and pain levels that would be 
 
            inhibitory in a work hardening program.  The only 
 
            recommendation that he made after the evaluation was that 
 
            claimant needed a pain management program.  Based on 
 
            claimant's effort, Mr. Bower rated him as being in a 
 
            sedentary to light work category.
 
            
 
                 9.  On January 30, 1990, Dr. Boulden released claimant 
 
            to return to work with restrictions that were sent under 
 
            separate cover.  The restrictions were given on March 7, 
 
            1990 and permitted claimant to lift 20 pounds occasionally 
 
            and 10 pounds frequently and a direction to use proper body 
 
            mechanics.  Following the release, Dr. Boulden saw claimant 
 
            again on March 13, 1990.  Claimant accused Dr. Boulden of 
 
            never releasing him back to work.  This is inconsistent with 
 
            the records contained in Dr. Boulden's file.  Dr. Boulden 
 
            concluded that there was nothing really functionally wrong 
 
            with claimant's  back and he referred him to another doctor.  
 
            
 
                 10.  Claimant attempted to return to work on March 20, 
 
            1990.  T. W. Davidson, of AE, indicated that claimant had a 
 
            helper for six days and then he ran the his sales route by 
 
            himself.  However, claimant believed he had a ruptured disc 
 
            in his back that would prevent him from doing this work.  He 
 
            complained of pain daily in his lower back and leg.  He 
 
            worked a full day by himself on March 29, 1990 but it was 
 
            very painful.  Claimant did not work after March 29, 1990.  
 
            
 
                 11.  In the meantime, claimant had already sought out 
 
            second opinions from  Robert C. Winchell, D.O., an internal 
 
            medicine specialist on December 8, 1989 and Timothy Kenney, 
 
            M.D. on February 20, 1990 for his back and other pain 
 
            complaints.  Both doctors obtained consistent histories from 
 
            claimant.  Dr. Winchell reviewed claimant's x-rays films but 
 
            not his CT scan.  After an examination, Dr. Winchell 
 
            concluded that he could not make a definitive diagnosis but 
 
            that he did know that claimant was not normal.  Dr. Winchell 
 
            did not indicate that claimant's work injury was related to 
 
            his current back complaints and he did not indicate one way 
 
            or the other as to the cause of claimant's pain complaint.  
 
            Dr. Kenney concluded that claimant had chronic low back and 
 
            thoracic back pain likely secondary to a chronic muscle 
 
            strain syndrome with probable components of discogenic pain.  
 
            Dr. Kenney had little to offer claimant that was different 
 
            from the conservative course of treatment that Dr. Boulden 
 
            had recommended.  Dr. Kenney indicated that claimant should 
 
            modify his activities, avoid lifting more than 25 pounds and 
 
            avoid repetitive bending and twisting activities.  Dr. 
 
            Kenney did not indicate that these were permanent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            restrictions.  Dr. Kenney also indicated that he felt 
 
            claimant's discomfort was real but that the diagnostic 
 
            studies had not found a treatable lesion.  Both Dr. Winchell 
 
            and Dr. Kenney saw claimant once.
 
            
 
                 12.  On March 22, 1990, Dr. Herndon saw claimant 
 
            complaining of back pain for the last six months.  Claimant 
 
            gave a consistent history of his injury and treatment to 
 
            date.  Dr. Herndon felt that after examination that claimant 
 
            might have a possible herniated lumbar disc.  Dr. Herndon 
 
            subsequently ordered an MRI study of claimant's entire 
 
            spine, an EMG study and a nerve conduction velocity study.  
 
            The MRI study revealed a mild narrowing of the cervical 
 
            canal that was congenital and some degenerative disease of 
 
            the cervical spine.  Otherwise claimant's spine was normal.  
 
            This result was confirmed when claimant was seen by Dr. 
 
            Winston on May 3, 1990.  Dr. Winston concluded that claimant 
 
            had a negative neurological examination.  Dr. Winston 
 
            reviewed the MRI and determined it was without evidence of 
 
            any surgical lesion.  Dr. Winston reported that he was not 
 
            impressed with any particular cervical narrowing as 
 
            contributing to claimant's symptoms.  He noted that there 
 
            was no evidence of myelopathy or spinal cord impingement of 
 
            any kind which had anything to do with the ongoing chronic 
 
            pain complained of by claimant.  Dr. Winston recommended 
 
            that claimant be enrolled in a chronic pain management 
 
            program at either Methodist or Mercy.  Dr. Winston also 
 
            recommended an epidural injection for claimant's pain in the 
 
            left lower extremity.  He noted that claimant had gained 
 
            weight and felt that claimant probably needed some change in 
 
            his occupational pursuit so that he did not have to use his 
 
            brawn in order to earn a living.
 
            
 
                 13.  Claimant saw Dr. Herndon in June, July, September 
 
            and November of 1990.  After an examination during each 
 
            visit, Dr. Herndon confirmed her diagnosis of chronic pain 
 
            syndrome, left in place a restriction of no heavy lifting 
 
            and indicated that claimant could work but not in his 
 
            regular occupation of delivering milk.
 
            
 
                 14.  The last correspondence from Dr. Herndon is May 1, 
 
            1991.  She responded to six questions posed by claimant's 
 
            counsel.  She believed that based on claimant's current 
 
            condition he was suffering from chronic lumbar pain syndrome 
 
            and bilateral carpal tunnel syndrome.  She felt that 
 
            claimant would benefit from a pain management program.  Dr. 
 
            Herndon still did not believe that claimant was capable of 
 
            returning to his work as a route delivery person for AE.  
 
            Dr. Herndon also indicated that she did not know if the 
 
            current restriction of no heavy lifting was permanent.  She 
 
            reported that if claimant was able to regain function and 
 
            lift and carry without pain, then he would be able to return 
 
            to his work as a route salesperson.  Dr. Herndon also felt 
 
            that the low back pain complaints, "were related to, and 
 
            possibly a result of an injury", that claimant sustained 
 
            when he slipped and fell while working on September 4, 1989.  
 
            She could find no evidence that he had complaints of back 
 
            pain prior to that time based on his subjective history and 
 
            medical records that had been submitted.  She felt that 
 
            falling backward and landing on his back would produce an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            injury that could result in the complaints he had.  Finally, 
 
            Dr. Herndon indicated that the claimant's MRI study obtained 
 
            on April 10, 1990, revealed a congenitally small cervical 
 
            spinal canal than a normal spinal canal.  The findings also 
 
            included shallow but diffuse protrusions of the cervical 
 
            spine through seven discs without frank herniation and mild 
 
            to moderate degeneration in C6-7.  Dr. Herndon did not think 
 
            that these findings were related to the patient's injury.  
 
            She felt that the upper extremity complaints were probably 
 
            related to bilateral mild carpal tunnel syndrome that was 
 
            found on a recent EMG and NCV study.  Dr. Herndon also 
 
            concluded that the carpal tunnel syndrome was not related to 
 
            claimant's fall on September 4, 1989.
 
            
 
                 15.  Claimant began to look for work in December of 
 
            1990, after his termination with Anderson Erickson.  
 
            Claimant made contacts with various employers around Des 
 
            Moines.  Claimant found employment with Stew Hansen Dodge.  
 
            Claimant's job commenced on March 11, 1991.  Claimant has a 
 
            draw of $150 per week against commissions.  At the time of 
 
            hearing, his year-to-date gross wage was $6,266.80.  This 
 
            was a four month total from date of claimant's employment 
 
            which, based on his wage records appears to be April of 
 
            1991.
 
            
 
                 16.  In February of 1991, claimant was advised that he 
 
            could return to his old route, with AE.  If he did not 
 
            return to the route, then he would be replaced with a senior 
 
            bidder.  Claimant did not respond to this request for a bid.  
 
            Claimant's wages with AE in 1988 were $21,054.70 and in 1989 
 
            were $21,062.92.  
 
            
 
                 17.  On July 17, 1991, claimant was seen for an 
 
            evaluation of permanent impairment.  Dr. Boulden and Mr. 
 
            Bower reviewed the claimant's history and also reviewed the 
 
            fact that a previous functional capacity evaluation had been 
 
            done in January of 1990 that was considered to be at the 
 
            very least conditionally valid and was merging on the border 
 
            of invalid.  At the date of the first evaluation, claimant 
 
            was felt to be pain fixated.  Mr. Bower and Dr. Boulden 
 
            noted that an MRI study of claimant's spine did not show 
 
            anything significant.  Dr. Boulden noted that the lumbar 
 
            spine studies revealed no abnormality.  After the 
 
            examination, Mr. Bower and Dr. Boulden concluded that the 
 
            claimant continued to have complaints of pain of an 
 
            undetermined etiology.  There was a lack of objective 
 
            findings and they concluded that claimant had no permanent 
 
            impairment based on their findings and information up to 
 
            July 17, 1991 and they did not renew claimant's 
 
            restrictions..
 
            
 
                 18.  Currently, claimant is still able to fish.  He 
 
            does not do yard work and he does not do repairs.  Claimant 
 
            has some difficulty in climbing in and out of small cars 
 
            that he is trying to sell and sitting for long periods of 
 
            time can be uncomfortable but is tolerable.  Claimant can 
 
            stand for a long period of time but this becomes 
 
            uncomfortable after awhile.  Surveillance tapes offered at 
 
            the hearing indicate that claimant is able to move about 
 
            fairly easily and with no distress.  He is able to stand for 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            long periods of time and can climb up fairly steep inclines 
 
            with good balance.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  Whether the work injury is the cause of permanent 
 
            disability.
 
            
 
                 Claimant contends that the injury of September 4, 1989 
 
            has caused a permanent injury to his back.  He supports this 
 
            contention with the medical reports of Dr. Herndon.  
 
            Defendants contend that claimant has not suffered a 
 
            permanent injury to his back and point to the records of Dr. 
 
            Boulden and Dr. Herndon.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            4, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 
 
            867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
 
            607, 613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167, 171 (Iowa 1960).  
 
            
 
                 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 v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  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.
 
            
 
                 Claimant argues that Dr. Herndon's medical evidence is 
 
            the most compelling evidence of claimant's permanency.  Even 
 
            though claimant does not have a functional impairment 
 
            rating, Dr. Herndon has imposed restrictions on claimant 
 
            regarding his work.  Claimant contends that this is 
 
            sufficient under McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
            181 (Iowa 1980) to establish permanency.  However, the 
 
            competing evidence and Dr. Herndon herself does not support 
 
            this conclusion.
 
            
 
                 While the evidence is clear that claimant had a 
 
            personality conflict with Dr. Boulden, Dr. Boulden, a board 
 
            certified orthopedist, had the best opportunity to observe 
 
            the claimant nearest in time to his injury and treat him 
 
            until his release to return to work.  Claimant doctor 
 
            shopped while he was being treated by Dr. Boulden until he 
 
            found a doctor who would agree with his view that he had a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            herniated disk, even though the objective tests did not 
 
            reveal any herniation.  The MRI studies showed that claimant 
 
            has some disk protrusions that were not impinging any nerve 
 
            roots and no doctor has linked this evidence to claimant's 
 
            injury.  The disk protrusions were in the thoracic spine and 
 
            not the lumbar spine, the primary source of claimant's back 
 
            complaints.  Dr. Boulden found on two occasions, once in 
 
            March of 1990 and again in July of 1991 that claimant had no 
 
            functional impairment in his back and no permanent injury to 
 
            his back.  Dr. Boulden and Thomas Bower concluded that the 
 
            source of claimant's pain was from an unclear etiology.  
 
            Claimant remained fixated on his pain throughout the course 
 
            of his treatment.  Finally, claimant's pain complaints are 
 
            not substantiated by any objective evidence that the pain 
 
            complaints are permanent in nature.  Pain that is not 
 
            substantiated by clinical findings is not a substitute for 
 
            impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
            Industrial Commissioner Report 419, 425 (Review-reopening 
 
            decision, October 22, 1981).
 
            
 
                 Dr. Herndon, a family practitioner, indicated that she 
 
            did not know whether claimant's injury had caused permanent 
 
            restrictions.  She did not give claimant a functional 
 
            impairment rating.  Dr. Herndon based her opinion on 
 
            claimant's subjective reports of pain.  Moreover, Dr. 
 
            Herndon was not sure whether claimant's current pain was 
 
            caused by the work injury.  She indicated that "the low back 
 
            pain complaints were in fact related to and possibly a 
 
            result of an injury that the claimant sustained on September 
 
            4, 1989".  She based this view on claimant's history.  She 
 
            went on to indicate that, "the fall and landing on his back 
 
            could produce an injury that would result in the complaint 
 
            he has had" (Emphasis added).  This evidence when coupled 
 
            with the claimant's pain fixation and inconsistent efforts 
 
            in connection with the functional capacity evaluation simply 
 
            is not sufficient to warrant a finding of permanency.  
 
            
 
                 However, claimant has established an entitlement to 
 
            temporary total disability benefits.  Pursuant to Iowa Code 
 
            sections 85.32 and 85.33 (1991), temporary total disability 
 
            of more than 14 days is payable from the date of 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 disability benefits.  
 
            Howard v. Whitehall Transportation, File No. 779866, Slip 
 
            Op. (Iowa Ind. Comm'r May 14, 1991).  In order to determine 
 
            when a temporary total disability ends, a comparison to the 
 
            events that terminate healing period benefits is 
 
            appropriate.  The Commissioner has held that the same events 
 
            which end healing period also terminate temporary total 
 
            disability entitlement.   Peterson v. John Morrell & Co., 
 
            File Nos. 906408, 933308, Slip Op. (Iowa Ind. Comm'r Arb. 
 
            May 21, 1991) (Temporary total disability benefits ended by 
 
            full time return to work, although further recuperation 
 
            might have occurred subsequently).
 
            
 
                 In this instance, claimant was released to return to 
 
            work by Dr. Boulden in March of 1990.  Claimant returned to 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            work and tried to work with a helper and then worked by 
 
            himself for one day.  He left his employment because of his 
 
            complaints of pain.  Dr. Herndon indicated that claimant's 
 
            was still unable to work until July of 1990.  Claimant 
 
            testified that he had no further improvement from the time 
 
            of his release in March of 1990.  Medical treatment designed 
 
            to relieve claimant's persistent complaints of pain does not 
 
            prove entitlement to additional temporary total disability 
 
            benefits.  Phillips v. Iowa Methodist Medical Center, File 
 
            No. 765826 Slip op. (Iowa Ind. Comm'r App., July 30, 1990) 
 
            (Claimant not entitled to additional healing period benefits 
 
            where the treatment is designed to relieve persistent 
 
            complaints of pain).  Consequently, claimant's temporary 
 
            total disability period ended on March 18, 1990.
 
            
 
                 The remaining issues raised by the claimant are moot in 
 
            light of the finding that claimant's injury did not cause a 
 
            permanent injury.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Anderson Erickson and Employers Mutual Companies 
 
            shall pay to claimant temporary total disability benefits 
 
            for the injury to claimant's back for the period of time 
 
            beginning on September 4, 1989 and ending on March 18, 1990 
 
            at the rate of three hundred and thirty-six and 18/100 
 
            ($336.18).  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.  Anderson Erickson and Employers Mutual Companies 
 
            shall have a credit in the amount of thirty-nine point four 
 
            two eight five (39.4285) weeks against any amounts owed.  
 
            
 
                 3.  The costs of this action shall be assessed to 
 
            Anderson Erickson and Employers Mutual Companies pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 5.  Anderson Erickson and Employers Mutual Companies 
 
            shall file claim activity reports as required by rule 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Channing Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street Ste 500
 
            West Des Moines Iowa 50265
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            1100 Des Moines Building
 
            Des Moines Iowa 50309-2464
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1801
 
                                               Filed August 6, 1992
 
                                               ELIZABETH A. NELSON
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LARRY SCOTT,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 940651
 
            ANDERSON ERICKSON DAIRY, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant did not prove entitlement to permanency benefits.  
 
            Claimant's family doctor did not assign permanent 
 
            restrictions to claimant and gave no functional impairment.  
 
            Claimant was offered a job twice by his employer, once upon 
 
            his release and then again 11 months later.  Claimant was 
 
            entitled to temporary total disability benefits only.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                                       51801 51803
 
                                       Filed February 12, 1992
 
                                       Jean M. Ingrassia
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         LESLIE VAN LENNING,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       : File Nos. 935847 & 940652
 
         STOLLER FISHERIES, INC.,      :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51801
 
         In file number 940652, claimant lost no time from work or any 
 
         wages as a result of the injury he sustained on April 19, 1989.  
 
         Therefore, he is not entitled to temporary total disability 
 
         benefits as a result this injury.
 
         
 
         51803
 
         In file number 935847;
 
         Claimant is entitled to 100 weeks of permanent partial disability 
 
         as a result of a back injury sustained on November 19, 1989.  
 
         Claimant is 35 years old and at the peak of his earning career.  
 
         He has a history of manual labor and has a 60-pound lifting 
 
         limitation as well as limitations on bending, stooping, and 
 
         reaching.  His wages today are not substantially less than when 
 
         he was injured, however, he has a loss of earning capacity as a 
 
         result of his back impairment.  Functional impairment ratings 
 
         ranged from 5 to 10 percent.  Claimant awarded 20 percent 
 
         industrial disability.
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NORMAN GRIES,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940654
 
            JOHN MORRELL & CO.,           :
 
                                          :     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.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Norman 
 
            Gries, claimant, against John Morrell & Co., employer, and 
 
            National Union Fire Insurance Company, insurance carrier, as 
 
            defendants.  Claimant seeks additional workers' compensation 
 
            benefits due to a work-related injury he sustained on 
 
            November 3, 1988.
 
            
 
                 The record in this case consists of the live testimony 
 
            of the claimant; and, joint exhibits 1 through 41.
 
            
 
                                      issues
 
            
 
                 According to the prehearing report, the parties 
 
            submitted the following issues for resolution:
 
            
 
                 1.  Whether the work-related injury is a cause of 
 
            permanent disability;
 
            
 
                 2.  Whether claimant has sustained an injury to a 
 
            scheduled member or body as a whole; and,
 
            
 
                 3.  The extent of claimant's disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant is a 45-year-old man who has worked for John 
 
            Morrell & Co. since 1986.  His primary job duties with the 
 
            slaughterhouse have been concentrated in the kill area.  
 
            Claimant's primary job has been that of sawing briskets.
 
            
 
                 On November 3, 1988, as claimant was performing his job 
 
            duties, he received an electrical shock from the saw he was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            using.  According to claimant, he heard a loud buzz, saw a 
 
            flash of light, and the next thing he knew he was on the 
 
            floor shaking.  At this point, he was unable to talk, and 
 
            when he stood up his legs felt rubbery.  The foreman helped 
 
            claimant to the nurse's office who took his blood pressure 
 
            and heartbeat.  He was sent home, and later contacted and 
 
            was asked to return to the plant and was subsequently sent 
 
            to the company doctor, D. M. Youngblade, M.D.  Dr. 
 
            Youngblade's notes indicate that claimant had received an 
 
            electrical shock which went into one arm, across his chest 
 
            and out the other arm.  Claimant was taken off of work for 
 
            two days (Joint Exhibit 13, page 1).
 
            
 
                 Claimant returned to Dr. Youngblade on November 7, 
 
            1988, and he complained of neuromuscular spasms in the left 
 
            chest area and arm.  He was given a muscle relaxant, and 
 
            underwent an EKG and x-rays of the chest and left arm.  All 
 
            of the test results were negative, and claimant was sent 
 
            back to light duty work and was to try regular duty work on 
 
            November 8, 1988 (Jt. Ex. 14, p. 1).
 
            
 
                 Eventually, claimant was placed on his regular job of 
 
            sawing briskets using the 440 saw.  Although claimant 
 
            testified that he was able to perform the duties for two to 
 
            three weeks, he continued to feel sharp pains in his 
 
            shoulder blades, particularly the left shoulder blade.
 
            
 
                 Although claimant testified that from December through 
 
            February of 1988, he returned to Dr. Youngblade on several 
 
            occasions.  Dr. Youngblade's notes indicate that claimant 
 
            did not return until May of 1989 for further treatment.  At 
 
            that time, according to Dr. Youngblade's notes, claimant was 
 
            complaining of pain in the right upper shoulder area, 
 
            particularly in the trapezius muscle and in the clavicle 
 
            area between the shoulder and neck on the right side.  
 
            Claimant was told to change jobs, and was given Norgesic 
 
            Forte (Jt. Ex. 23, p. 1).  In May and June of 1989, claimant 
 
            visited Dr. Youngblade on three additional occasions, and 
 
            continued to complain of muscle spasms in the left shoulder, 
 
            according to Dr. Youngblade's notes.  Eventually, he was 
 
            told to alternate his job duties, and/or change jobs (Jt. 
 
            Ex. 23, p. 2).  Defendant employer was notified of these 
 
            work restrictions (Jt. Ex. 18, 19 and 20).
 
            
 
                 In August of 1989, claimant was involved in a 
 
            motorcycle accident, and was treated at the Marian Health 
 
            Center for chest pains.  The final diagnosis was that of 
 
            chest wall abrasion with resultant pleurisy.  He was given 
 
            Tylenol 3 and was dismissed from the health center.  He 
 
            returned on several occasions and was diagnosed as having 
 
            costochondritis and ligamentous sprain of the left chest 
 
            wall, and was taken off of work for several days (Jt. Ex. 
 
            35, 36, and 37).
 
            
 
                 Claimant continued complaining of pain in the left 
 
            shoulder blade, and was eventually directed to attend 
 
            physical therapy sessions.  On August 7 and 11, 1990, 
 
            claimant had undergone an arthrography of the left shoulder 
 
            at the direction of M.E. Wheeler, M.D.  The results were 
 
            negative, and claimant was instructed to see D.K. Nelson, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            M.D., for further treatment.  He was given additional 
 
            medications, including Prednisone, and he was to arrange for 
 
            follow-up care with Dr. Wheeler (Jt. Ex. 25, p. 5).
 
            
 
                 Claimant returned to Dr. Wheeler in August of 1990, and 
 
            at that time was given permanent work restrictions of no 
 
            grasping with the left hand and arm; no knife or hook work 
 
            with the left hand or arm; no Wizzard knife work with the 
 
            left hand or arm; and, no reaching above the shoulders and 
 
            no pushing or pulling with the left hand or arm (Jt. Ex. 
 
            27).  Subsequently, Dr. Wheeler formed an opinion as to 
 
            claimant's physical condition:
 
            
 
                    I do believe that his problems were caused by 
 
                 the electrical shock injury and that his condition 
 
                 is permanent.  However, based on the AMA 
 
                 Guidelines, he has no permanent partial impairment 
 
                 rating as he has full range of motion of the 
 
                 shoulder and normal neurological status....I have 
 
                 imposed permanent work restrictions of no working 
 
                 with arms above shoulder level, lifting greater 
 
                 than 20 lbs, or saw work.  As of 8/23/90, I 
 
                 documented in my records that I did not think his 
 
                 condition would improve and would relate this to 
 
                 his maximum medical improvement date.
 
            
 
            (Jt. Ex. 29)
 
            
 
                 In April of 1991, claimant was sent by the defendants 
 
            to Leonard Weber, M.D., for an independent medical 
 
            examination.  After completing a full neurological 
 
            examination, including range of motion testing on both the 
 
            left and right shoulders, Dr. Weber reported that claimant 
 
            had sustained a 3 percent permanent impairment of the left 
 
            shoulder due to rhomboid discomfort.  He related this 
 
            discomfort to the electrical shock injury of November 3, 
 
            1988 (Jt. Ex. 32, pp. 1-6).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained a scheduled member injury, or an injury to the 
 
            body as a whole.
 
            
 
                 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, 887 (Iowa 
 
            1983).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 The rhomboid muscles are located in the upper part of 
 
            the back, and are attached to thoracic vertebras.  As a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            result, it is found that claimant has sustained an injury to 
 
            the body as a whole, and his disability will be evaluated 
 
            industrially.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Currently, claimant is employed with the defendant as a 
 
            hog driver.  This position requires the use of his voice, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            arms and an electric prod to drive hogs into the kill area.  
 
            He works the night shift, and earns between $8.60 and $8.70 
 
            per hour.  His position is classified as a five bracket job 
 
            and his previous position was classed as a nine bracket job.  
 
            One bracket is worth $.05.  He is able to perform his duties 
 
            on a full-time basis.
 
            
 
                 Claimant wears a TENS unit during the week, but not on 
 
            the weekends.  A brace was prescribed by Dr. Wheeler to help 
 
            support the muscle in the left shoulder and back area.
 
            
 
                 Because of the injury, claimant has been working under 
 
            work restrictions of no lifting of greater than 20 pounds; 
 
            no work above the shoulder level; no cooler work; and, no 
 
            pushing or pulling with the left arm.  Leonard E. Weber, 
 
            M.D., believes claimant has a 3 percent functional 
 
            impairment of the left upper extremity due to the injury.  
 
            Using the conversion charts of the AMA Guides to the 
 
            Evaluation of Permanent Impairment, this rating converts to 
 
            a 2 percent impairment to the body as a whole.
 
            
 
                 Claimant obtained his GED while in the army, and his 
 
            work history has been concentrated in the slaughterhouse 
 
            industry.  Claimant has been evaluated by two vocational 
 
            rehabilitation experts, and both agree that claimant is of 
 
            average intelligence, and would need to undergo some 
 
            additional training if he sought employment outside the 
 
            slaughterhouse industry.  Specifically, each singled out 
 
            claimant's appearance as a hindrance to developing job 
 
            opportunities.  It is commendable that the defendant 
 
            employer continues to employ claimant.
 
            
 
                 There is no question that claimant underwent a serious 
 
            accident while working on the job.  However, his actual loss 
 
            of earnings has been minimal.  This does not prevent a 
 
            finding of loss of earning capacity, and considering all the 
 
            factors that comprise an industrial disability, it is found 
 
            that claimant has sustained a 20 percent loss.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            (100) weeks of permanent partial disability benefits at the 
 
            rate of two hundred forty-seven and 88/100 dollars ($247.88) 
 
            per week, beginning November 7, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            
 
            Mr Edward J Keane
 
            Attorney at Law
 
            400 1st Natl Bank Bldg
 
            P O Box 1768
 
            Sioux City IA 51102
 
            
 
            Mr Thomas M Plaza
 
            Ms Rita C Grimm
 
            Attorneys at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            Mr Daniel L. Flaherty
 
            Polk County Attorney
 
            Polk County Office #340
 
            Des Moines IA 50309
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed February 28, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NORMAN GRIES,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940654
 
            JOHN MORRELL & CO.,           :
 
                                          :     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.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant received a shock from an electric saw.  As a 
 
            result, he continues to suffer from pain in the left 
 
            shoulder.
 
            Defendants offered claimant suitable employment, but the job 
 
            was a 5-bracket position.  At the time of the injury, 
 
            claimant was working at a 9-bracket position.
 
            Claimant awarded 15 industrial disability.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MARC DEVLIN,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                    File No. 940668
 
         ABRAHAMS PARTS & MACHINE   
 
         SERVICE, INC.,   
 
                                                     A P P E A L
 
              Employer,   
 
                                                   D E C I S I O N
 
         and         
 
                     
 
         CINCINNATI INS. CO.,       
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 7, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         The findings made by the deputy at page 8, paragraph 2 relating 
 
         to the claimant's 1964 conviction are deleted.  The industrial 
 
         commissioner places no weight on that conviction as it relates to 
 
         the claimant's credibility or lack thereof.  However, for all the 
 
         other reasons stated by the deputy, the industrial commissioner 
 
         rejects the claimant's version of events when in conflict with 
 
         other credible evidence.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law
 
         100 Court Ave., Ste 203
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Jeff M. Margolin
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                               9999
 
                                               Filed November 9, 1992
 
                                               Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARC DEVLIN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 940668
 
            ABRAHAMS PARTS & MACHINE   
 
            SERVICE, INC.,   
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            CINCINNATI INS. CO.,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed February 7, 
 
            1992, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARC DEVLIN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 940668
 
                                          :
 
            ABRAHAMS PARTS & MACHINE      :      A R B I T R A T I O N
 
            SERVICE, INC.,                :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CINCINNATI INS. CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Marc Devlin filed a petition in arbitration 
 
            for benefits under the Iowa Workers' Compensation Act 
 
            against employer Abrahams Parts & Machine Service 
 
            ("Abrahams") and its insurance carrier, Cincinnati Insurance 
 
            Company.  He alleges permanent disability resulting from a 
 
            work-connected back injury on March 21, 1990.
 
            
 
                 The cause came on for hearing in Davenport, Iowa, on 
 
            December 5, 1991.  The record consists of joint exhibits 1 
 
            through 11, claimant's exhibits A and B and the testimony of 
 
            claimant, Mel Hamilton, Therese Devlin and Douglas Ralston.  
 
            Richard A. Roski, M.D., testified by deposition on November 
 
            21, 1991 (joint exhibit 11).
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship and to the rate of compensation.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on March 21, 1990;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and temporary or permanent disability;
 
            
 
                 3.  The extent of temporary and permanent disability, 
 
            if any; and,
 
            
 
                 4.  Entitlement to medical benefits.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Marc Devlin, 43 years of age at hearing, was first 
 
            employed by Abrahams in February 1977.  Abrahams is in the 
 
            business of repairing and rebuilding engines, especially 
 
            large diesel engines.  Claimant held several jobs during 
 
            steady employment until April 1990 and was a machinist in 
 
            the engine block department for the last 6-8 years of 
 
            employment.  All jobs involved a degree of heavy and 
 
            strenuous work, including lifting, bending, reaching and 
 
            "torquing" with large wrenches.
 
            
 
                 As early as December 28, 1977, chart notes of John T. 
 
            Johnson, D.O., reflect complaints of aching pain in the 
 
            lower back.  Thereafter, Mr. Devlin has intermittently 
 
            sought treatment of his back complaints from multiple 
 
            medical doctors and chiropractors, by his own testimony, as 
 
            often as three or four times per year.  Sidney Greenswag and 
 
            Douglas Ralston (machine shop foremen) prepared what appears 
 
            to be a personnel file memorandum on July 11, 1980, to the 
 
            effect that claimant called in after wrenching his back 
 
            while bowling, relating that he had a back problem stemming 
 
            from a high school football injury, that his father also had 
 
            back problems, and that it might be a "hereditary" problem.  
 
            In his deposition testimony of April 26, 1991, claimant 
 
            acknowledged a muscle pull while playing football, but 
 
            indicated the injury was insignificant.
 
            
 
                 On March 21, 1990, claimant was working on a large 
 
            truck engine which he had lifted on a hoist, but the engine 
 
            block was apparently unbalanced, and swung towards him.  
 
            When Mr. Devlin attempted to stop the swinging block, he was 
 
            pushed backwards into a "boring bar," a tapered steel handle 
 
            approximately six inches long and approximately the diameter 
 
            of a human thumb at the tip.  Claimant was struck in the 
 
            middle and right side of his lumbar spine.  According to 
 
            coworker Mel Hamilton, the closest mechanic, claimant voiced 
 
            an audible "ahh" and reported he had been pushed into the 
 
            boring bar.  Hamilton further reported that claimant did not 
 
            require an extended break to recover from the incident and 
 
            did not voice further complaint.
 
            
 
                 Claimant's wife, Therese Devlin, testified that 
 
            claimant complained of pain upon returning home from work 
 
            and that she helped treat him with ice and a bathtub 
 
            whirlpool.  Claimant also stretched out on the floor for 
 
            relief.  Mr. Devlin was not active the rest of the weekend 
 
            (March 21 was a Friday), but acted normally and seemed 
 
            recovered thereafter.  Ms. Devlin also indicated that her 
 
            husband is not a complainer.
 
            
 
                 During the next three and one-half weeks, claimant did 
 
            not seek medical attention, did not report the incident to 
 
            his employer, did not request that a first report of injury 
 
            be filed (he had experience with previous workers' 
 
            compensation claims), did not complain of back pain at work, 
 
            did not request any change in duties, never left work early 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            and performed his regular job without apparent difficulty, 
 
            in fact working between two and seven hours of overtime each 
 
            week.
 
            
 
                 On Saturday, April 12, 1990, claimant suffered a 
 
            dramatic turn of events while raking his backyard.  He 
 
            developed severe pain and a loss of strength in the legs 
 
            causing him to fall face down.  He was unable to get up, and 
 
            was forced to crawl back to his house, completely unable to 
 
            move the lower back:
 
            
 
                 A.  I was standing.  I leaned forward, you know, 
 
                 to pick up some of the stuff that was on the 
 
                 ground to put into a trash bag.
 
            
 
                 Q.  And at that instant that's when you noticed 
 
                 what?
 
            
 
                 A.  Well, I had real severe pain in the lower back 
 
                 and I couldn't straighten up, and I just lost all 
 
                 strength in my legs and just went down to the 
 
                 ground.  I couldn't move.  You know, I couldn't 
 
                 stand up without supporting myself with something, 
 
                 and when I did, it was just too severe, you know, 
 
                 to even try to stand erect.
 
            
 
                 * * *
 
            
 
                 Q.  You weren't able to stand up at all?
 
            
 
                 A.  No. I was in the backyard and I had to crawl 
 
                 into the house through the back door and up the 
 
                 steps to the kitchen, and that's where I stayed 
 
                 till my wife came home.  She was out shopping.  It 
 
                 was about an hour later, 'cause I was on my hands 
 
                 and knees.
 
            
 
            (Marc Devlin deposition, page 52, lines 4 through line 15 
 
            and page 52, line 23 through page 53, line 4)
 
            
 
                 Claimant's wife called a chiropractor acquaintance, who 
 
            came over and gave some informal immediate treatment.  No 
 
            records of this practitioner, Chuck Palimone, appear in 
 
            evidence.
 
            
 
                 On April 16, claimant visited his long-time 
 
            chiropractor, Dennis Lopez, D.C.  Chart notes reflect 
 
            complaints of right hip and right side pain going down the 
 
            leg and stopping just above the knee.  Dr. Lopez charted a 
 
            history of claimant having injured his back working in his 
 
            yard.  No reference to the alleged work incident appears.  
 
            Pain on the 16th extended only to the right buttock.  
 
            Claimant continued to see Dr. Lopez ten more times by May 
 
            14.  Chart notes tended to reflect steady improvement.
 
            
 
                 Claimant's personnel file with Abrahams contains the 
 
            following entry dated April 26, 1990, apparently prepared by 
 
            Sidney Greenswag:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Mark Devlin called Doug Ralston and then asked to 
 
                 speak to me.  He indicated that he would like to 
 
                 come in tomorrow morning to talk with me.  I asked 
 
                 him how he was progressing, and he told me that he 
 
                 had had X-Rays (I believe) and a Cat scan that 
 
                 reveals a bulging disc.
 
            
 
                 He mentioned that he has been seeing a 
 
                 chiropractor for about 8 years because of lower 
 
                 back pain.
 
            
 
                 What Mark proposed to me was the possiblity [sic] 
 
                 that I would "go along" with calling this a work 
 
                 connected illness, so that he could be covered 
 
                 under our workman's Compensation insurance.  He 
 
                 said that "the doctors told him that this problem 
 
                 seemed to be coming on for some time, and Mark 
 
                 postulated that his lifting and twisting at work 
 
                 probably brought this condition on, etc.
 
            
 
                 I asked him about Doug's telling me that he had a 
 
                 sciatic nerve problem, and Mark said that the 
 
                 bulging disc was pressing on that nerve -- if I 
 
                 understood him correctly.
 
            
 
                 I told him that Doug had told me that his problem 
 
                 occurred while "raking up his yard"---to which 
 
                 Mark responded that he was cleaning up his yard 
 
                 from the winter (the Saturday before 
 
                 Easter)---nothing very heavy, etc, when he 
 
                 twisted, and a sharp pain forced him to his knees, 
 
                 and he crawled into the house on his hands and 
 
                 knees.
 
            
 
                 I told Mark that I would and could not be a party 
 
                 to an attempt to call this a work connected 
 
                 problem---that I would resist it, etc., but that 
 
                 (obviously) the laws would pertain as to what is 
 
                 appropriate, etc.  He is covered on health care 
 
                 thru his wife's coverage.
 
            
 
            Joint exhibit 9, page 8)
 
            
 
                 This damaging evidence stands unrebutted, although 
 
            claimant testified both by deposition and at hearing.  It is 
 
            found to be an accurate reflection of the events of April 
 
            26, 1990.
 
            
 
                 On May 2, 1990, claimant saw Stephen C. Rasmus, M.D., a 
 
            neurologist.  On May 15, Dr. Rasmus wrote that he had been 
 
            given a history of chronic low back pain for eight years and 
 
            the leaf raking incident "when suddenly he had severe pain 
 
            in his lower back with radiation into the right buttocks."  
 
            Dr. Rasmus reported that computerized tomography showed 
 
            spinal stenosis at L4-5 with focal disc herniation at L5-S1, 
 
            central and to the left.  Dr. Rasmus "suspected" that there 
 
            had been some predisposed disc herniation prior to the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            sudden pain while raking, although no isolated incident 
 
            could be identified.  On June 16, during another visit, 
 
            claimant added to the previous history by mentioning the 
 
            work incident in March.
 
            
 
                 Claimant was also seen by John T. Johnson, D.O., a 
 
            practitioner claimant had also seen in the 1970s.  Chart 
 
            notes apparently of April 24 reflect a history of back 
 
            injury while raking leaves.  Dr. Johnson wrote that x-rays 
 
            revealed a diffuse bulging at L4-5, hypertrophy of the facet 
 
            joints at L4-5 and minimal thickening of the ligamentum 
 
            flavum posterior causing a borderline spinal stenosis at 
 
            that level, with a focal protrusion of deep disc slightly to 
 
            the left of mid-line at L5-S1 displacing the S1 nerve root 
 
            sleeve.  Dr. Johnson opined that the trauma was work 
 
            related.  Since there is nothing in Dr. Johnson's chart 
 
            notes reflecting a history of the Abrahams incident in 
 
            March, it is unclear whether his reference is actually to 
 
            the leaf raking incident as "work related."  Likely, it is.
 
            
 
                 Magnetic resonance imaging studies of July 31, 1990, 
 
            performed by Eugene Johnson, M.D., led to an impression of 
 
            herniated disc at L4-5 with desiccated disc material and 
 
            osteophyte formation and no significant findings at L5-S1.
 
            
 
                 Claimant was referred to board-certified neurosurgeon 
 
            Richard A. Roski, M.D., on August 30, 1990.  Dr. Roski was 
 
            given a history of the work incident here under review, 
 
            including claimant's assertion that he had immediate severe 
 
            pain and had to sit for 15-20 minutes until able to tolerate 
 
            movement.  Further history showed that claimant was raking 
 
            leaves on April 14 when he had an abrupt onset of severe 
 
            pain in the center of the low back "radiating to the right 
 
            side and down the posterior aspect of the right leg to the 
 
            ankle."  Dr. Roski continued to treat claimant with epidural 
 
            blocks and other therapy.  Surgery has never been performed, 
 
            although it was considered.  In a letter dated November 26, 
 
            1990, Dr. Roski stated:
 
            
 
                 In regards to the question of causation, the 
 
                 patient initially injured his back in March of 
 
                 1990.  As it was noted in his history, the actual 
 
                 leg symptoms did not develop until he was raking 
 
                 leaves in April of 1990.  Obviously there is some 
 
                 question whether the actual herniation of the disc 
 
                 may have happened in April.  The bigger overall 
 
                 question remains however, whether or not this was 
 
                 simply a worsening of the underlying injury that 
 
                 occurred in March.  Clearly an event occurred on 
 
                 both dates that contributed to his present 
 
                 condition.  It is difficult, if not impossible, to 
 
                 try to separate those completely as to one or the 
 
                 other being the sole cause of his present problem.  
 
                 I do not mean to totally muddy the water on this 
 
                 issue, but clearly there is two problems that may 
 
                 have contributed to some degree to his present 
 
                 condition.  It would certainly be impossible for 
 
                 me to separate those out in any scientific 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                 fashion.
 
            
 
            (Joint exhibit 5, page 1)
 
            
 
                 Dr. Roski believed claimant to have sustained a seven 
 
            percent impairment to the body as a whole which he 
 
            attributed as follows:
 
            
 
                 A.  Well, I can give you my thinking process in 
 
                 this and then try to come up with a number.  The 
 
                 underlying structural problem is a degenerative 
 
                 disk at 4-5.  Those kind of problems have to do 
 
                 with the wear and tear that we do over periods of 
 
                 time in our life.  If one looks at diesel work as 
 
                 a type of work that obviously is going to be a 
 
                 contributing factor over time to his low back, and 
 
                 one would have to assume it probably was, then the 
 
                 structural problem is the underlying thing.  If 
 
                 you take each individual event and say well, could 
 
                 either one of those exacerbate his disk problem, 
 
                 yes, they could.  But when you look at it in the 
 
                 spectrum and say, well, but isn't his work over 
 
                 time wearing down that area a bigger contributing 
 
                 factor over time, I think that logic makes sense.  
 
                 So when you say would I assign more to one, yes, I 
 
                 think you'd certainly assign more towards what's 
 
                 happened over a long period of time to his back 
 
                 from work probably the bigger proportion of that 
 
                 seven percent.  Now, then, it gets down to well, 
 
                 how scientific does that number become.  Well five 
 
                 percent from the job area, two from the other 
 
                 doesn't seem unreasonable.  Again, how totally 
 
                 scientific that becomes, I don't know, but I 
 
                 certainly -- that's my thinking process as far as 
 
                 how I would shift those two things back and forth 
 
                 some, but -- I don't have a specific guideline to 
 
                 give me those exact numbers, but I think that 
 
                 breakdown would have some logic to it.
 
            
 
                 Q.  Does the practice of medicine sometimes 
 
                 involve more of an art than a science?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And is this such an instance?
 
            
 
                 A.  I'm not sure if I would just call it art; I 
 
                 think it's trying to take some pieces of a puzzle 
 
                 and try and put them into some kind of logical 
 
                 sequence that you can at least make an attempt to 
 
                 explain.  That is a lot of what we face, 
 
                 unfortunately, in this kind of work.
 
            
 
            (Dr. Roski deposition, page 12, line 8 through page 13, line 
 
            22)
 
            
 
                 Thus, it appears that Dr. Roski attributes causation to 
 
            a cumulative process and the leaf incident, but not 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            specifically to the traumatic events of March 21.  Dr. 
 
            Roski's history was also defective in two significant 
 
            respects.  First, he was completely unaware of claimant's 
 
            long history of chronic back pain (which he agreed could 
 
            "certainly" alter his opinions on causation) and secondly, 
 
            believed that claimant had been completely disabled for 15 
 
            or 20 minutes immediately following the work incident.  In 
 
            fact, according to Mel Hamilton, the work incident was much 
 
            less dramatic and quickly shrugged off.
 
            
 
                 Claimant was also seen for evaluation by Peter D. 
 
            Wirtz, M.D.  Dr. Wirtz wrote that the July 31, 1990, MRI 
 
            showed disc degeneration without neurological impingement 
 
            and that neither the March 21 incident nor the April 14 
 
            incident resulted in functional impairment.
 
            
 
                 Claimant's testimony is in several respects at odds 
 
            with the facts found herein.  In particular, he testified to 
 
            15 or 20 minutes of disability following the work incident 
 
            (in his trial testimony, he spent this time walking around 
 
            until pain diminished, while in his deposition testimony, he 
 
            mostly sat for 15 or 20 minutes) and he claims that the 
 
            first instances of leg pain came on while doing physical 
 
            therapy exercises in May or June 1990.  (It is undisputed 
 
            that he suffered no radicular symptoms at the time of the 
 
            work injury.)
 
            
 
                 Claimant is, of course, interested in this litigation, 
 
            as are all claimants.  However, larceny is not entirely a 
 
            foreign concept to Mr. Devlin.  In his application for 
 
            employment filed with Abrahams, he reported having been 
 
            convicted of auto theft in 1964.  Iowa Rule of Evidence 609 
 
            (impeachment by evidence of conviction of crime) does not 
 
            require exclusion of evidence in an administrative 
 
            proceeding, but can be used as guidance in weighing the 
 
            probative value of that evidence.  Snider v. Super Valu 
 
            Stores, Inc., File No. 888077 (Arb. Decn., June 25, 1991) 
 
            (aff'd by industrial commissioner November 18, 1991).  
 
            Because this conviction is more than ten years old, the 
 
            probative value to be given the conviction is diminished.  
 
            However, even though diminished, it is nonetheless a factor 
 
            considered by this writer in evaluating claimant's 
 
            credibility and propensity to seek unlawful gain.
 
            
 
                 In his deposition of April 26, 1991, claimant testified 
 
            under examination by defense counsel:
 
            
 
                 Q.  Before coming to work -- or I should say 
 
                 before this episode in mid-March, did you have any 
 
                 problems with your back, any complaints or any 
 
                 episodes or instances of low back pain?
 
            
 
                 A.  No.
 
            
 
                 Q.  Okay.
 
            
 
                 A.  Just, you know, the time in high school, the 
 
                 muscle sprain, the lower back was all.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Q.  Did you ever see a chiropractor before?
 
            
 
                 A.  No.
 
            
 
            (Marc Devlin deposition, page 20, line 18 through page 21, 
 
            line 2)
 
            
 
                 These answers are patently false, as shown both later 
 
            in the same deposition and by medical records introduced in 
 
            this record.
 
            
 
                 Claimant's assertion that he was immediately disabled 
 
            for 15-20 minutes following the work incident is rebutted by 
 
            his own witness, Mel Hamilton.  Hamilton is disinterested in 
 
            this litigation and seemed to have a good recollection of 
 
            the incident.  He would no doubt have recalled if claimant 
 
            had been so obviously disabled as he now maintains.
 
            
 
                 While it is undisputed that claimant did not suffer 
 
            radicular symptoms at work, he now claims not even to have 
 
            suffered those symptoms at the time of the leaf raking 
 
            incident.  Contemporaneous medical histories show otherwise.  
 
            The distinction is significant because radiating pain to the 
 
            leg is a very common symptom of pressure on a nerve root in 
 
            the lower back.  Such pain was characterized by Dr. Roski as 
 
            a "red flag."  Since claimant clearly has suffered radicular 
 
            symptoms, it is in his pecuniary interest to disassociate 
 
            those symptoms from the leaf raking incident, which he 
 
            wishes to minimize, since it is not work related and 
 
            furnishes, by itself, a rational cause of his entire 
 
            disability.  The contemporaneous medical histories are much 
 
            more reliable.
 
            
 
                 For these reasons in combination, claimant's version of 
 
            events has not been accepted when in conflict with other 
 
            credible evidence.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 21, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 He also has the burden of proving by a preponderance of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            the evidence that the injury of March 21, 1990, is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant is a man who had suffered chronic back 
 
            problems requiring frequent medical treatment in the years 
 
            prior to March 21, 1990.  On that date, he definitely 
 
            suffered an incident when a swinging engine block drove him 
 
            into the boring bar and he was struck in the area of the 
 
            lumbar spine.  However, he was able to return to work 
 
            quickly and continued through the day.  By the end of the 
 
            day, claimant described himself as being a little stiff and 
 
            a little tender, but not suffering sharp or severe pain.  He 
 
            improved over the weekend with home treatment (ice, 
 
            whirlpool bath and rest) and afterwards appeared normal and 
 
            uncomplaining even to his wife.  Although he alleges 
 
            continued minor pain, it is undisputed that Mr. Devlin then 
 
            worked three weeks without complaint or lost time (with 
 
            overtime, in fact), while performing his regular duties and 
 
            without reporting the incident to management.  It is 
 
            undisputed that he suffered no radicular symptoms to the 
 
            right leg.
 
            
 
                 Some three and one-half weeks later, claimant suffered 
 
            a much more severe and dramatic incident while raking leaves 
 
            at home.  While twisting, he was struck down by severe and 
 
            disabling back pain.  He was forced to crawl back to his 
 
            house and remain on the floor for one to one and one-half 
 
            hours before his wife returned.  He was unable to stand.  
 
            Pain to just above the knee (Dr. Lopez), to the foot (Dr. 
 
            Roski), or to the buttock (Dr. Rasmus) developed for the 
 
            first time, certainly consistent with later radiographic 
 
            findings of a herniated disc.  Two weeks later, claimant 
 
            called management and attempted to convince the employer to 
 
            conspire in viewing his obvious problem as a work-connected 
 
            injury.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
                 For claimant to prevail, it must be found that his 
 
            current symptomatology is related to the work incident as 
 
            opposed to the leaf incident (there is no expert opinion 
 
            causally relating the leaf incident itself to the earlier 
 
            work incident).  From a lay perspective, causation appears 
 
            most clearly related exclusively to the leaf incident.  The 
 
            work incident was minor and did not disable claimant.  He 
 
            continued to work his regular duties with overtime and 
 
            without complaint.  His symptoms, even on the day of the 
 
            incident, amounted only to a little tenderness and 
 
            stiffness.  The leaf raking incident appears much more 
 
            significant in that claimant was stricken to the ground and 
 
            unable to rise.  This was the first manifestation of 
 
            radicular pain to the right leg, commonly associated with a 
 
            nerve root impingement such as may occur with a herniated 
 
            disc.
 
            
 
                 What then is the medical opinion, recalling that 
 
            claimant bears the burden of proof on the issue?  Dr. Roski 
 
            attributed some of claimant's impairment both to the leaf 
 
            incident and to claimant's history of physical labor, he 
 
            thought each may have contributed to some degree to 
 
            claimant's present condition and that it would "certainly be 
 
            impossible to separate those out in any scientific fashion."  
 
            He did not attribute any impairment specifically to the 
 
            traumatic incident here claimed as a work injury.  Even to 
 
            the extent that Dr. Roski's attempt to separate impairment 
 
            out be deemed to relate to the work incident itself, it is 
 
            important to note that he was given a defective history in 
 
            two significant respects:  he was not aware of claimant's 
 
            history of chronic low back pain and medical treatment and 
 
            he believed that claimant had been disabled for 20 minutes 
 
            following the work incident, which would tend to paint that 
 
            incident as much more significant than it actually seemed at 
 
            the time.
 
            
 
                 Dr. Daniel Johnson believed that claimant had suffered 
 
            a work-related injury, but it is unclear what "work" the 
 
            doctor referred to.  His chart notes reflect a history only 
 
            of the leaf raking incident and do not mention the March 21 
 
            accident.
 
            
 
                 Although claimant asserts in his brief that Dr. Rasmus 
 
            relates his impairment to the work incident, this observer 
 
            is unable to glean such an opinion from the records of that 
 
            physician.
 
            
 
                 Dr. Wirtz finds no impairment of any kind.
 
            
 
                 On balance then, it cannot be said that medical opinion 
 
            assists claimant.  He has not sustained his burden of proof 
 
            in establishing an injury arising out of and in the course 
 
            of employment.  He no doubt has suffered an injury, but this 
 
            observer finds the weight of the evidence connects 
 
            impairment to the leaf raking incident at home and not to 
 
            the work accident of March 21, 1990.  Even if a cumulative 
 
            injury theory is considered (as suggested by Dr. Roski), the 
 
            weight of the evidence is that claimant had no industrial 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            disability (loss of earning capacity) prior to his injury 
 
            while raking leaves.  Other issues are thereby rendered 
 
            moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The costs of this action are assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            100 Court Avenue
 
            Suite 203
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Jeffrey M. Margolin
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20; 5-2207; 3700
 
                                               Filed February 7, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARC DEVLIN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 940668
 
                                          :
 
            ABRAHAMS PARTS & MACHINE      :      A R B I T R A T I O N
 
            SERVICE, INC.,                :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CINCINNATI INS. CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.20; 5-2207
 
            Claimant failed to prove his disability related to a minor 
 
            work incident, as opposed to a dramatic appearance of 
 
            symptoms when he was raking leaves at home several weeks 
 
            later.
 
            
 
            3700
 
            Iowa Rule of Evidence 609 (Impeachment by evidence of 
 
            criminal conviction) does not operate as an exclusionary 
 
            rule in administrative proceeding, but is valuable for 
 
            guidance in weighing probative value of that evidence.
 
            Evidence of auto theft conviction was given diminished 
 
            weight due to age, but still considered.  Given also other 
 
            evidence described in the decision, claimant was found to 
 
            lack credibility.