Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRENDA MICKEY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 942585
 
            MERCY HOSPITAL,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration filed by Brenda 
 
            Mickey, claimant, against Mercy Hospital, employer, and 
 
            self-insured defendant, for benefits as a result of an 
 
            alleged injury that occurred on February 27, 1990.  A 
 
            hearing was held at Council Bluffs, Iowa, on May 12, 1992, 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Jacob John Peters.  
 
            Defendant was represented by Robert V. Roach and Richard D. 
 
            Crotty.  The record consists of the testimony of Brenda 
 
            Mickey, claimant, and joint exhibits 1 through 10.  Claimant 
 
            presented an excellent hearing brief at the time of the 
 
            hearing.
 
            
 
                                preliminary matter
 
            
 
                 The issue shown on the hearing assignment order of 
 
            whether defendant is entitled to a credit for benefits paid 
 
            to claimant prior to hearing under a nonoccupational group 
 
            health plan pursuant to Iowa Code section 85.38(2), was 
 
            withdrawn by defendant at the time of the hearing, because 
 
            claimant stipulated to the credit.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant sustained an injury on February 
 
            27, 1990, which arose out of and in the course of employment 
 
            with the employer;
 
            
 
                 2.  Whether the injury was the cause of either 
 
            temporary or permanent partial disability;
 
            
 
                 3.  Whether claimant is entitled to temporary or 
 
            permanent disability benefits, and if so, the extent of 
 
            benefits to which she is entitled.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            her lumbosacral spine on February 27, 1990, which arose out 
 
            of and in the course of her employment with employer.
 
            
 
                 Claimant is an approximate six year employee of 
 
            employer.  She started to work for employer in January of 
 
            1985 and worked until the date of this injury on February 
 
            27, 1990, plus a period of approximately another five months 
 
            from April to September in 1990.
 
            
 
                 Claimant testified that her job was physically 
 
            demanding.  She worked in the housekeeping department 
 
            performing janitorial work in the executive office building 
 
            of employer.  Her duties included (1) cleaning and mopping 
 
            floors; (2) picking up large containers of trash; (3) 
 
            carrying them to the first floor for disposal; and (4) 
 
            dumping trash into dumpsters.  She testified that she was 
 
            required to do a considerable amount of bending and lifting.  
 
            Claimant denied any previous injuries or accidents either 
 
            caused by employment or sources outside of her employment.  
 
            This employment was her only employment after graduating 
 
            from high school.  Claimant found that hauling the bags of 
 
            trash from four different floors to the dumpster and lifting 
 
            them over her head to put them in the dumpster was 
 
            particularly strenuous.
 
            
 
                 At the time of this injury, claimant had been cleaning 
 
            underneath a table on her hands and knees with a dustpan and 
 
            whisk broom.  She testified that when she came out from 
 
            underneath a table and stood up she suddenly felt pain in 
 
            her right side and lower back.  She reported the injury to 
 
            her supervisor.  An accident report was filled out and 
 
            claimant was sent to the emergency room.  Claimant described 
 
            the experience as a feeling of pressure below her belt like 
 
            something was sticking out of her back and causing pain down 
 
            both legs.  The emergency room took x-rays, prescribed 
 
            medications, and took her off work for four days.  At the 
 
            end of that time, she was feeling worse and the health nurse 
 
            sent her to see James R Rochelle, M.D., an orthopedic 
 
            surgeon.
 
            
 
                 Dr. Rochelle saw claimant on March 5, 1990, and March 
 
            12, 1990, for sudden onset of low back and right leg pain on 
 
            February 27, 1990.  On March 26, 1990, he changed his 
 
            diagnosis of probable herniated lumbar disc to lumbar 
 
            strain, after an MRI was normal.  He continued medications 
 
            and physical therapies.
 
            
 
                 On May 15, 1990, claimant was doing quite well, had a 
 
            good range of motion and only mild pain in the low back with 
 
            certain repetitive activities.  He said she was much better 
 
            able to tolerate her work.  His final diagnosis was chronic 
 
            lumbar strain, no permanent disability.
 
            
 
                 Claimant returned to work on April 18, 1990, but her 
 
            back kept getting worse.  The constant demands of the job 
 
            were too much.  She returned to see Dr. Rochelle on 
 
            September 17, 1990, at which time he took her off work a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            second time.  He prescribed physical therapy, but no 
 
            medications because she was pregnant at this time.  Her 
 
            child was born December 11, 1990, but the back pain was just 
 
            as bad after the child was born and in addition began to go 
 
            up her back to her arms.  She tried a TENS unit again and a 
 
            new corset.  A second MRI was also normal, but as time went 
 
            by she felt like she became worse.
 
            
 
                 On September 17, 1990, Dr. Rochelle reported recurrent 
 
            lumbar strain with radicular component, possible disc bulge 
 
            or herniation.  On October 1, 1990 and October 23, 1990, he 
 
            reported that she was worse on each occasion.  On January 
 
            10, 1991, the second MRI was ordered.  On January 23, 1991,  
 
            he reported the MRI was negative.  On February 5, 1991, he 
 
            ordered a caudal block followed by a series of injections 
 
            which were performed on February 14, 1991.  On February 26, 
 
            1991, Dr. Rochelle reported that the injections did not help 
 
            her, she remained essentially unchanged with a diagnosis of 
 
            chronic lumbar strain.  He commented that she should 
 
            probably be precluded from jobs entailing moderate to heavy 
 
            lifting on a repetitive basis.  On March 19, 1991, he said 
 
            claimant had reached maximum medical improvement with 50 
 
            percent of normal flexion and 75 percent of normal rotatory 
 
            and lateral bending in both directions.  The final diagnosis 
 
            was chronic lumbar strain.  Dr. Rochelle said that claimant 
 
            should get on with her life in terms of other vocational 
 
            possibilities.  He issued a permanent restriction of no 
 
            lifting of greater than 10 pounds occasionally.
 
            
 
                 Dr. Rochelle gave a final report to claimant's attorney 
 
            on March 28, 1991.  He said her low back injury was caused 
 
            by her employment at Mercy Hospital; that she will not be 
 
            able to return to her former employment in housekeeping at 
 
            Mercy Hospital; that her permanent restrictions were no 
 
            lifting of greater than 10 pounds occasionally and no 
 
            repetitive stooping, bending, squatting or kneeling; and 
 
            that her permanent disability rating was 6 percent of the 
 
            body as a whole.  He added that she was not a good candidate 
 
            for surgery in the future, and that she will have to learn 
 
            to live with a good deal of this pain for the indefinite 
 
            future (Joint Exhibits 1 and 2).
 
            
 
                 Defendant disputed the extent of disability but the 
 
            evidence of injury was not controverted, contradicted, 
 
            rebutted or refuted.
 
            
 
                 Wherefore, it is determined that claimant sustained and 
 
            injury to her lumbosacral spine on February 27, 1990, which 
 
            arose out of and in the course of employment with employer.
 
            
 
              causal connection - entitlement - temporary disability
 
            
 
                 It is determined that the injury of February 27, 1990, 
 
            was the cause of temporary disability.  There was no 
 
            evidence of any other cause for claimant's disability.  
 
            Claimant denied and there was no evidence of any prior 
 
            accidents or injuries to her back.  Dr. Rochelle said that 
 
            the incident of February 27, 1990 was the cause of her 
 
            disability.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The parties stipulated that claimant's entitlement to 
 
            temporary disability benefits if defendant was found liable 
 
            for the injury was for the period from February 28, 1990 
 
            through April 17, 1990 (a period of 7 weeks), and a second 
 
            period of time from September 12, 1990 through June 11, 1991 
 
            (a period of 39 weeks), for a total period of 46.0 weeks (7 
 
            plus 39).
 
            
 
              causal connection - entitlement - permanent disability
 
            
 
                 It is determined that the injury of February 27, 1990 
 
            was the cause of permanent disability for the same reasons 
 
            that it was determined to be the cause of temporary 
 
            disability.  In particular, Dr. Rochelle said that the 
 
            injury was the cause of her disability.
 
            
 
                 It is further determined that claimant has sustained a 
 
            15 percent industrial disability to the body as a whole and 
 
            is entitled to 75 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 An independent medical examination was performed by 
 
            Anil K. Agarwal, M.D., an orthopedic surgeon, on May 31, 
 
            1991.  Dr. Agarwal reported on June 4, 1991, that he 
 
            examined claimant for low back pain with radiation of pain 
 
            to the right leg.  He related that claimant was five foot 
 
            one inch tall and weighed 172 pounds.  His physical 
 
            examination was essentially normal except that she reported 
 
            pain with the knee and hip flexed.  Lumbar spine x-rays were 
 
            normal; disc spaces were well maintained.
 
            
 
                 Dr. Agarwal diagnosed mild lumbar strain, with 
 
            significant functional overlay.  He said that clinically and 
 
            radiologically, he failed to find any objective findings to 
 
            suggest that she cannot return to work.  He stated that he 
 
            believed she could return to her regular duties, gradually 
 
            with a beginning weight restriction of about 25 to 30 pounds 
 
            for lifting and to avoid repeated bending and stooping.  Dr. 
 
            Agarwal said that he saw a lack of motivation on her part to 
 
            return to work.  He said that she could return to work with 
 
            a back support if she wishes.
 
            
 
                 Dr. Agarwal concluded by stating that clinically, 
 
            radiologically, and with repeated MRI scans, there was no 
 
            objective evidence of any abnormal findings suggestive of 
 
            any permanent injury.  He concluded by stating:  "I 
 
            therefore believe that she did not sustain any permanent 
 
            disability."
 
            
 
                 Jim Weiss, M.A., C.R.C, a rehabilitation consultant, 
 
            performed an evaluation of claimant in the presence of her 
 
            attorney on May 21, 1991.  He reported that claimant 
 
            indicated that she was experiencing daily pain with a 
 
            numeric value of 8 on a scale of from 0 to 10.  Mr. Weiss 
 
            related that claimant was a high school graduate but was not 
 
            involved in any extracurricular programs and has not 
 
            completed any further education or training after high 
 
            school.  He said lifting requirements were up to a maximum 
 
            of 50 pounds in her housekeeping job but her average lifting 
 
            was 25 to 30 pounds.  The only marketable skill which she 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            could use was commercial cleaner, medium, unskilled.  Weiss 
 
            said her vocational options with her transferable skill and 
 
            consistent with her past employment would be (1) central 
 
            supply hospital worker, or (2) residential house cleaner, 
 
            both of which were light strength demand jobs.  He added 
 
            that she would also be qualified for (1) hospital laundry 
 
            worker, (2) private laundry worker, or (3) janitorial 
 
            positions which are medium strength demand jobs.  He said 
 
            these jobs exist in sufficient numbers in Council Bluffs, 
 
            Iowa, and all jobs provide wages consistent with her 
 
            previous wage of $5.58 per hour.
 
            
 
                 Weiss recognized the conflict between Dr. Rochelle and 
 
            Dr. Agarwal.  He said considering Dr. Agarwal's opinion, Dr. 
 
            Rochelle's opinion, and claimant's opinion, all three, that 
 
            claimant should still have full access to sedentary and 
 
            light strength demand jobs, with access to a large number of 
 
            medium strength demand jobs.  He said these jobs would all 
 
            provide her with the opportunity to sit, stand, and walk 
 
            during a normal eight hour work period.  Weiss concluded: 
 
            "In considering all above factors (objective and 
 
            subjective), I find Ms. Mickey has sustained a Loss of 
 
            Earning Capacity in the range of 5 to 10%" (Ex. 5, p. 4).
 
            
 
                 Claimant's young age of 26 years tends to reduce her 
 
            industrial disability.  Because of her youth, she has many 
 
            years to perform productive work within her limitations and 
 
            lengthy opportunity to retrain for other employment.  Becke 
 
            v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Indus. Comm'r Rep. 426 (1981); 
 
            McCoy v. Donaldson Company, Inc., file numbers 782670 & 
 
            805200 (Appeal Decision 1989)
 
            
 
                 Claimant has a high school education which places her 
 
            on a par with most employees in the competitive labor 
 
            market.  She is also capable of retraining.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).  She has already completed a word 
 
            processing course.  She is also capable of various 
 
            on-the-job training programs.
 
            
 
                 There is a dispute between Dr. Rochelle and Dr. Agarwal 
 
            as to whether claimant can return to her former employment 
 
            as a housekeeper, also described as an environmental 
 
            services technician at Mercy Hospital in Council Bluffs, 
 
            Iowa.  Dr. Agarwal thought that she could gradually resume 
 
            these duties within a 25 to 30 pound limitation and freedom 
 
            from repetitive bending and lifting.  However, according to 
 
            claimant, a large part of the job entails bending and 
 
            lifting an average of 25 to 30 pounds and up to a maximum of 
 
            50 pounds.  The opinion of Dr. Rochelle is preferred over 
 
            the opinion of the one time examiner, Dr. Agarwal, whose 
 
            examination was specifically for the purpose of litigation.  
 
            Dr. Rochelle on the other hand, who is the treating 
 
            physician, was responsible for claimant's care and the 
 
            ultimate success or failure of  has not sought vocational rehabilitation through the State 
 
            of Iowa or privately on her own volition.
 
            
 
                 Claimant testified that she has been seeking employment 
 
            in secretarial or clerical work which did not require any 
 
            lifting or bending but noted her lack of experience or 
 
            training as a secretary or clerical worker prevented her 
 
            from getting a job.
 
            
 
                 Claimant cited a lack of finances in order to attend 
 
            college.  It seems that some kind of academic retraining 
 
            will be required if claimant is to be able to perform 
 
            sedentary, light or medium work of a clerical or secretarial 
 
            nature.  In the past, claimant has always performed medium 
 
            or heavy work.  Education or training is normally expensive.  
 
            The cost of the instruction (tuition, fees, books, 
 
            transportation) as well as time lost from compensble 
 
            employment combine to increase claimant's industrial 
 
            disability.
 
            
 
                 Claimant stated that she has made inquiries at several 
 
            places of employment and completed approximately 15 to 20 
 
            applications but she had no call-backs or interviews.  She 
 
            had no response from her application with employer that she 
 
            made shortly before the hearing.  If employer had wished to 
 
            mitigate industrial disability employer could have responded 
 
            promptly.  If claimant had wished to be employed by employer 
 
            she could have applied for re-employment sooner.
 
            
 
                 Claimant contended that she is no longer able to bend, 
 
            lift, do laundry, perform housework, vacuum, or clean 
 
            floors.  Her pain is in her lower back and down her right 
 
            leg and sometimes goes all the way to her toes.  Her family 
 
            helps her with her baby and chores.  It painful for her to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            ride in a car.
 
            
 
                 Claimant acknowledged that she has not applied for any 
 
            grants or help from colleges.
 
            
 
                 Claimant testified that Weiss did not try to place her 
 
            in any particular employment nor did he administer any tests 
 
            in making his evaluation.
 
            
 
                 It is noted that none of the physicians recommended a 
 
            myelogram or a CT scan which indicated that they were 
 
            satisfied with their diagnosis of lumboscral strain based 
 
            upon the x-rays and MRI scan.  It is also noted that none of 
 
            the physicians recommended any surgery.  There was no 
 
            evidence of either of bulging or herniated disc.
 
            
 
                 Wherefore, based on (1) a permanent impairment rating 
 
            of 6 percent to the body as a whole; (2) permanent 
 
            restrictions from the treating physician to not lift more 
 
            than 10 pounds and to perform no repetitive stooping, 
 
            bending, squatting or kneeling; (3) that these restrictions 
 
            foreclosed claimant from performing her former employment as 
 
            an environmental services technician (housekeeper) for 
 
            employer; (4) the fact that employer has had no work that 
 
            claimant could do in spite of the fact that the vocational 
 
            rehabilitation specialist enumerated several jobs which are 
 
            normally available in the employer's operations; (5) that 
 
            claimant was formerly capable of heavy work and is now 
 
            limited to either sedentary, light or medium work; (6) based 
 
            upon claimant's young age of 26; (7) based upon claimant's 
 
            high school education and ability for either academic or 
 
            on-the-job training; (8) considering that Dr. Agarwal 
 
            thought there was a significant functional overlay element 
 
            in claimant's symptomology and Weiss felt that claimant's 
 
            subjective limitations were not consistent with the medical 
 
            findings; (9) based upon all the factors used to determine 
 
            industrial disability, Peterson v. Truck Haven Cafe, Inc., 
 
            vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985), 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985); and, (10) employing agency expertise Iowa 
 
            Administrative Code 17A.14, it is determined that claimant 
 
            has sustained a 15 percent industrial disability and is 
 
            entitled to 75 weeks of permanent partial disability 
 
            benefits.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, it is determined that claimant did sustain 
 
            the burden of proof by a preponderance of the evidence that 
 
            she sustained an injury to her lumbosacral spine on February 
 
            27, 1990, which arose out of and in the course of her 
 
            employment with employer.  Iowa Code section 85.3, paragraph 
 
            1; 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).
 
            
 
                 Claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of February 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            27, 1990, was the cause of both temporary and permanent 
 
            disability; 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).
 
            
 
                 Claimant is entitled to 46.0 weeks of healing period 
 
            benefits as stipulated to by the parties.  Iowa Code section 
 
            85.34(1).
 
            
 
                 Claimant has sustained a 15 percent industrial 
 
            disability to the body as a whole and is entitled to 75 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant pay to claimant forty-six (46) weeks of 
 
            healing period benefits at the stipulated rate of one 
 
            hundred forty-one and 92/100 dollars ($141.92) per week in 
 
            the total amount of six thousand, five hundred twenty-eight 
 
            and 32/100 dollars ($6,528.32) commencing on February 28, 
 
            1990, as stipulated to by the parties.
 
            
 
                 That defendant pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of one hundred forty-one and 92/100 dollars ($141.92) 
 
            per week in the total amount of ten thousand six hundred 
 
            forty-four dollars ($10,644) commencing on June 12, 1991, as 
 
            stipulated to by the parties.
 
            
 
                 That defendant is entitled to a credit for seventy-one 
 
            (71) weeks of workers' compensation benefits paid to 
 
            claimant prior to hearing at the rate of one hundred forty-
 
            one and 92/100 dollars ($141.92) per week in the total 
 
            amount of ten thousand seventy-six and 32/100 dollars 
 
            ($10,076.32) and stipulated to by the parties.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing, as well as 
 
            claimant's costs in the amount of one hundred fifteen 
 
            dollars ($115) [filing fee $65.00; report of Dr. Rochelle 
 
            $50] are charged to defendant pursuant to Iowa Code section 
 
            86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            ________________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jacob John Peters
 
            Attorney at Law
 
            233 Pearl St
 
            P O Box 1078
 
            Council Bluffs IA 51502
 
            
 
            Mr Robert V. Roach
 
            Attorney at Law
 
            800 Exchange Bldg
 
            1905 harney St
 
            Omaha NE 68102
 
            
 
            Mr Richard D Crotty
 
            Attorney at Law
 
            311 First Federal Bldg
 
            Council Bluffs IA 51503
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1106; 5-1401; 5-1402.20;
 
                                          5-1402.30 5-1108.50;
 
                                          5-1402.40; 5-1803
 
                                          Filed May 18, 1992
 
                                          Waltner R. McManus
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRENDA MICKEY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 942585
 
            MERCY HOSPITAL,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1106; 5-1401; 5-1402.20; 5-1402.30
 
            Claimant sustained an injury to her lumbosacral spine that 
 
            occurred when she stood up after cleaning under a table.
 
            
 
            5-1108.50; 5-1402.40
 
            The injury was the cause of both temporary and permanent 
 
            disability according to the treating physician.
 
            
 
            5-1802
 
            Claimant was entitled to temporary disability for the period 
 
            stipulated to by the parties.
 
            
 
            5-1803
 
            Claimant awarded 15% industrial disability--6% impairment 
 
            rating; foreclosed from previous housekeeping job:  ten 
 
            pound weight restriction; removed from heavy to sedentary, 
 
            light and medium categories of work; age 26; high school 
 
            education; needs retraining for new work which will cost 
 
            money.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY L. WULF,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 942776
 
                                          :
 
            DOUBLE CIRCLE FARM SUPPLY,    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Gary L. Wulf suffered a work-related back 
 
            injury on August 28, 1989.  He has filed a petition in 
 
            arbitration seeking benefits under the Iowa Workers' 
 
            Compensation Act from his employer, Double Circle Farm 
 
            Supply, and its insurance carrier, Aetna Casualty & Surety 
 
            Company.
 
            
 
                 This cause came on for hearing in Sioux City, Iowa, on 
 
            April 30, 1992.  Claimant and Tim Rasmussen testified at 
 
            hearing (Rasmussen's deposition of March 10, 1992, is also 
 
            in evidence).  Claimant's exhibits 1 and 3 through 16 were 
 
            received into evidence.  Claimant's exhibit 2 was excluded 
 
            upon objection.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            August 28, 1989.  They agree that the injury caused 
 
            intermittent temporary disability, the extent of which is no 
 
            longer in dispute, and permanent disability, the extent of 
 
            which is in dispute.  The parties have stipulated to the 
 
            rate of compensation ($173.15 per week) and agree that 
 
            entitlement to medical benefits is not in dispute.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  The extent of permanent disability; and,
 
            
 
                 2.  The amount of credit to which defendants are 
 
            entitled for benefits voluntarily paid.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Gary L. Wulf, 39 years of age at hearing, is a 1971 
 
            high school graduate, being a "C" student in the 
 
            vocational/agricultural program.  His only further education 
 
            consists of two night classes taken last year, one in 
 
            mathematics and one in development of study skills.
 
            
 
                 Mr. Wulf grew up on a farm.  His work history consists 
 
            mostly of farm work, largely on a part-time basis.  He also 
 
            worked six years in a grain elevator.  Except for employment 
 
            as a deputy assessor, all of claimant's employment 
 
            experience is in relatively heavy manual labor.
 
            
 
                 Double Circle Farm Supply hired claimant as a general 
 
            laborer in January 1988, at a starting wage of $5.00 per 
 
            hour.  Prior to the work injury, claimant performed such 
 
            duties as driving truck, mixing fertilizer and the operation 
 
            of spraying equipment in fields.
 
            
 
                 Mr. Wulf was injured on August 28, 1989, when he fell 
 
            through the loading dock while carrying a bag of seed.  One 
 
            leg broke through a weakened plank, resulting in an awkward 
 
            fall to his buttocks, the one leg only going clear through.
 
            
 
                 Claimant continued to work, but back symptoms and 
 
            radiating pain progressively increased.  Accordingly, he 
 
            underwent surgery for a herniated disc at L4-5 in March 1990 
 
            with initially good results.  However, symptoms quickly 
 
            returned and a second surgical procedure at the same level 
 
            was carried out in August 1990.
 
            
 
                 Claimant now suffers a multi-surgical failed back 
 
            syndrome.  Magnetic resonance imaging undertaken on January 
 
            28, 1991, revealed extensive residual scar tissue involving 
 
            the left L5 nerve root.  A third surgical procedure was 
 
            considered by Thomas A. Carlstrom, M.D., (the treating 
 
            surgeon) and, on consultation, by Douglas R. Koontz, M.D., 
 
            and Robert E. Steg, M.D., of the Department of Neurology, 
 
            Creighton University Medical Center.  Because claimant's 
 
            continued symptoms appear related to the post-surgical 
 
            development of scar tissue rather than additional
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            herniation, additional surgery has been ruled out at this 
 
            time.
 
            
 
                 Claimant's current medical restrictions, imposed by Dr. 
 
            Koontz effective July 2, 1991, are as follows:
 
            
 
                 1.  No lifting in excess of 20 pounds.
 
            
 
                 2.  No repetitive bending, twisting, pushing or 
 
                 pulling.
 
            
 
                 3.  Must be able to alternate positions every 
 
                 15-20 minutes.
 
            
 
                 Dr. Steg advised against any heavy lifting or carrying 
 
            and recommended vocational rehabilitation, since he 
 
            considered a line of work away from "labor related jobs, 
 
            specifically farming" to be important.
 
            
 
                 So far, defendants have been able to accommodate 
 
            claimant's limitations.  He is now earning $.50 more per 
 
            hour ($5.85) than was the case on the date of injury.  A 
 
            vacancy fortuitously occurred when the former branch manager 
 
            resigned.  Claimant is currently performing many of those 
 
            "inside" duties, answers the telephone and sells feed and 
 
            fertilizer products.  Indeed, claimant now works an average 
 
            of about five hours per week overtime and also acts as 
 
            manager of a family farm operated by his brother.  
 
            Unfortunately, his current situation is tenuous.  Double 
 
            Circle has made a corporate decision to defer consideration 
 
            of claimant's status until learning the results of this 
 
            litigation.  It is possible that claimant will be promoted 
 
            to fill the branch manager position, but it is also possible 
 
            that he will be discharged if another candidate is chosen, 
 
            since Mr. Wulf can no longer perform his previous duties and 
 
            Double Circle's budget does not allow for another "inside" 
 
            worker.
 
            
 
                 At hearing, defendants filed with this deputy a Form 2A 
 
            reflecting that weekly benefits in the sum of $14,321.93 had 
 
            been made by September 13, 1991.  Of that total, defendants 
 
            designated $6,431.31 as healing period, and $7,850.62 as 
 
            permanent partial disability.  Official notice of that 
 
            document is hereby taken under Iowa Code section 17A.14(4).  
 
            It is determined that fairness to the parties does not 
 
            require an opportunity to contest the facts contained 
 
            therein, as claimant was aware of this document at the time 
 
            of hearing and elected not to present contrary evidence.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. 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 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  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.  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 as well as
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Gary Wulf's work experience is almost entirely in 
 
            manual labor.  It is obvious that his medical restrictions 
 
            will foreclose him from future work of that kind.  He has 
 
            some experience as an assessor and now, is temporarily 
 
            performing management work, receptionist work and sales for 
 
            defendant.  It is not proper to speculate as to claimant's 
 
            future career with Double Circle, but if defendants had not 
 
            been able to accommodate those restrictions, his industrial 
 
            disability would be substantially greater.  In the event 
 
            that Double Circle now discharges claimant, the extent of 
 
            industrial disability can be reconsidered upon a petition 
 
            for review-reopening.
 
            
 
                 It is clear that claimant is at very much of a 
 
            competitive disadvantage when one compares his medical 
 
            restrictions to his work history.  Other than straight 
 
            sales, one is hard pressed to think of potential employment 
 
            in the agricultural sector that does not involve lifting in 
 
            excess of 20 pounds, not to mention repetitive bending, 
 
            twisting, pushing or pulling.  Claimant is foreclosed from 
 
            truck driving by the requirement that he be able to change 
 
            positions every 15-20 minutes.  While defendants 
 
            characterize Mr. Wulf as a "young man" with a "good 
 
            education," this observer is less optimistic.  At age 39, 
 
            claimant should just be entering his most productive years, 
 
            but now finds himself mostly unable to perform the work in 
 
            which he has experience.  He was an average high school 
 
            student in a vocational/agricultural program and has no 
 
            other significant education.  As of now, claimant is 
 
            practically at the mercy of Double Circle Farm Supply, an 
 
            employer that has elected to await the outcome of this 
 
            litigation before deciding his future.
 
            
 
                 Considering then these matters in particular and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 40 
 
            percent of the body as a whole, or 200 weeks.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred seventy-three and 15/100 
 
            dollars ($173.15) per week commencing July 1, 1991.
 
            
 
                 Defendants shall have credit in the sum of seven 
 
            thousand eight hundred ninety and 62/100 dollars ($7,890.62) 
 
            for voluntary benefits paid in excess of claimant's healing 
 
            period entitlement.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph J. Heidenreich
 
            Attorney at Law
 
            100 Main Street
 
            Odebolt, Iowa  51458
 
            
 
            Mr. Joseph L. Fitzgibbons
 
            Attorney at Law
 
            108 North 7th Street
 
            P.O. Box 496
 
            Estherville, Iowa  51334
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1703; 5-1803; 2901
 
                                                   Filed July 8, 1992
 
                                                   DAVID RASEY
 
            
 
                     BEFORE THE INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GARY L. WULF,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 942776
 
                                          :
 
            DOUBLE CIRCLE FARM SUPPLY,    :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Industrial disability was awarded.
 
            
 
            1703; 2901
 
            Where credit for voluntary benefits was disputed, official 
 
            notice of a Form 2A filed at hearing was taken under 
 
            17A.14(4).  It was determined in the decision that fairness 
 
            to the parties did not require further opportunity to 
 
            contest those facts.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MATTHEW HUBBARD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 942893
 
            LANCASTER COLONY CORPORATION, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE  :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Matthew 
 
            Hubbard, claimant, against Lancaster Colony Corporation, 
 
            employer, and American Motorists Insurance Company, 
 
            insurance carrier, defendants, for benefits as a result of 
 
            an injury which occurred on February 1, 1990.  A hearing was 
 
            held in Des Moines, Iowa on June 25, 1992, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Max Schott.  Defendants were represented by 
 
            Thomas M. Plaza.  The record consists of the testimony of 
 
            Matthew Hubbard, claimant, and joint exhibits 1 through 47.  
 
            Both attorneys submitted excellent post-hearing briefs.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether the injury of February 1, 1990, was the 
 
            cause of permanent disability;
 
            
 
                 2.  Whether claimant is entitled to permanent 
 
            disability benefits, and if so, the extent of benefits to 
 
            which he is entitled; and,
 
            
 
                 3.  Whether claimant is entitled to the payment of the 
 
            medical bill of John Eilers, D.C.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
             causal connection - entitlement to permanent disability
 
            
 
                 It is determined that the injury of February 1, 1990, 
 
            was the cause of permanent disability; that claimant has 
 
            sustained a 25 percent industrial disability to the body as 
 
            a whole; and, that claimant is entitled to 125 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Claimant, born October 18, 1963, was 26 years old at 
 
            the time of the injury and 28 years old at the time of the 
 
            hearing.  His industrial disability is lessened due to the 
 
            fact of his young age. Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Indus. Comm'r Rep. 426 (1981); McCoy v. Donaldson 
 
            Company, Inc., file numbers 782670 & 805200 (Appeal Decision 
 
            1989).
 
            
 
                 Claimant's industrial disability is not increased due 
 
            to his education because he has a high school education and 
 
            received better than average grades in school.  Furthermore, 
 
            claimant has demonstrated his adaptability by performing a 
 
            number of different employments prior to and subsequent to 
 
            this injury.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant's past employments have all involved heavy to 
 
            very heavy work.  Immediately after high school, he 
 
            performed seasonal construction work.  He then worked as a 
 
            cook and dishwasher in a cafe.  Next, he worked in food 
 
            preparation of an assembly production nature.  He 
 
            constructed swimming pools.  Claimant testified that all of 
 
            these jobs were unskilled jobs which paid between $4.00 and 
 
            $6.50 per hour and did not provide him with any transferable 
 
            skills.  Claimant denied any prior or subsequent injuries or 
 
            accidents which would effect the low back injury in this 
 
            case and the medical records did not demonstrate any such 
 
            injuries or accidents.
 
            
 
                 Claimant started to work for employer in November of 
 
            1985.  His employment application showed that he had never 
 
            been injured (Joint Exhibit 46).  Claimant was employed in 
 
            the warehouse for employer at the time of his injury pulling 
 
            orders and operating a forklift and electrical palletizer.  
 
            He had also performed factory work.  Subsequent to the 
 
            injury, he drove semi-trucks shagging trailers between the 
 
            warehouse and the factory.
 
            
 
                 On February 1, 1990, following an ice storm, claimant 
 
            fell down on his buttocks in the parking lot.  He was able 
 
            to finish the shift that day and did not report the injury 
 
            until a few days later when his symptoms increased.  
 
            Claimant's mother suggested that he see John A. Eilers, D.C.
 
            
 
                 The records of Dr. Eilers show that he first saw 
 
            claimant on February 6, 1990.  The history shows that 
 
            patient fell on ice in the parking lot and hit hard on his 
 
            bottom which was causing sharp pain and cramps in his left 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            hip and leg (Jt. Ex. 1).  Claimant received several 
 
            manipulations, ultrasound treatments and muscle stimulation 
 
            treatments (Ex. 2).  On March 23, 1990, Dr. Eilers diagnosed 
 
            a damaged fifth lumbar disc with pain and cramps radiating 
 
            through the sciatic nerve into the left leg with possible 
 
            disc damage (Ex. 3).  Claimant was taken off work from 
 
            February 6 through February 20, 1990, and again from March 
 
            6, 1990 to March 12, 1990.  He was released for light duty 
 
            work on March 14, 1990.
 
            
 
                 Claimant's care was then transferred to Dr. Terry Van 
 
            Oort, who saw claimant one time, ordered an x-ray, and 
 
            referred claimant to Peter D. Wirtz, M.D., an orthopedic 
 
            surgeon.  The x-ray taken on March 22, 1990, of the lumbar 
 
            spine was interpreted to be within normal limits (Ex. 6).
 
            
 
                 Dr. Wirtz saw claimant on May 24, 1990, and ordered a 
 
            bone scan (Ex. 7) which was reported as normal (Ex. 7).  On 
 
            April 4, 1990, the physical examination of Dr. Wirtz was 
 
            essentially normal.  He diagnosed resolved low back 
 
            musculoskeletal strain and said claimant could work without 
 
            any restrictions (Ex. 6).
 
            
 
                 Claimant testified that he continued to have pain and 
 
            asked to be seen by Dr. Eilers again because Dr. Eilers 
 
            provided relief for his pain but the company refused to pay 
 
            for any additional treatment by Dr. Eilers.
 
            
 
                 Dr. Wirtz ordered an MRI of the lumbar spine on July 
 
            16, 1990, which disclosed early type II degenerative changes 
 
            at L5/S1 for his age and a large extradural deformity at 
 
            L5/S1 compressing and deforming the thecal sac in the left 
 
            S1 nerve root.
 
            
 
                 On August 1, 1990, Dr. Wirtz diagnosed disc 
 
            degeneration with nerve irritation in the left leg.  He said 
 
            claimant should be restricted from forceful, heavy, 
 
            stressful activities of bending, twisting and lifting of the 
 
            back (Ex. 10).  On August 27, he took claimant off work 
 
            completely and recommended a laminectomy and disc removal at 
 
            L5-S1 (Ex. 11).  The surgery was performed on September 10, 
 
            1990.  Dr. Wirtz estimated that claimant would be off work 
 
            for approximately four to six months (Ex. 12).
 
            
 
                 On January 2, 1991, Dr. Wirtz reported recurrent 
 
            symptoms in the buttock and down the left leg with numbness 
 
            developing in the plantar aspect of the foot and decreased 
 
            feeling over the fifth toe and along the lateral aspect of 
 
            the heel.  Nevertheless, he said claimant had reached a 
 
            plateau of healing.  He should avoid excessive bending, 
 
            twisting and awkward positions in the back as well as long 
 
            standing (Ex. 15).
 
            
 
                 Claimant was unable to return to work at that time 
 
            because of the layoff which was expected to last for 
 
            approximately three to seven months (Ex. 16).
 
            
 
                 On February 4, 1991, Dr. Wirtz said claimant had 
 
            reached maximum medical benefit and assessed a 10 percent 
 
            impairment to the body as a whole.  He ordered a functional 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            capacity examination to determine claimant's lifting 
 
            capabilities (Ex. 17).
 
            
 
                 The functional capacity examination performed on 
 
            February 19, 1991, showed that the left hip was lower than 
 
            the right and the left knee was generally flexed.  The 
 
            evaluator said the patient drops the left hip and does not 
 
            extend the left knee during gait.  He tends to walk with an 
 
            externally rotated left leg.  It was determined that 
 
            claimant is in a medium job category which entails lifting 
 
            75 pounds infrequently and 35 pounds frequently (Ex. 18).  
 
            On April 4, 1991, Dr. Wirtz confirmed this evaluation was 
 
            consistent with his physiologic strength and dexterity and 
 
            postoperative condition but might increase over time to an 
 
            unlimited work capacity (Ex. 19).
 
            
 
                 On January 23, 1991, Crawford Rehabilitation was 
 
            employed to assist claimant in finding work (Ex. 16).
 
            
 
                 Dr. Wirtz reported that claimant continued to have 
 
            complaints on August 28, 1991 (Ex. 21).  Subsequently, Dr. 
 
            Wirtz referred claimant to Scott C. Erwood, M.D., who first 
 
            saw claimant on October 10, 1991.  Dr. Erwood noted that 
 
            claimant was better for awhile after surgery for a period of 
 
            weeks but then noted renewed discomfort in his lower back 
 
            and bilaterally in his lower extremities which has steadily 
 
            worsened (Ex. 21).  Claimant had taken a job with an 
 
            exterminating company in June of 1991 at $6.00 per hour 
 
            which required a lot of bending, stooping and working in 
 
            awkward positions.  It also required lifting 20 and 30 pound 
 
            cannisters.
 
            
 
                 Dr. Erwood noted that claimant was forced to quit this 
 
            job on October 1, 1991, because of pain down both legs and 
 
            in his lower back.  The doctor said his gait was bilaterally 
 
            antalgic, left more so than right-sided.  A follow-up MRI of 
 
            the lumbosacral spine showed postoperative changes at the 
 
            L5/S1 level with some scar formation ventrally and around 
 
            the left S1 root.  Dr. Erwood said his impression was failed 
 
            back syndrome, status post L5/S1 discectomy in September of 
 
            1990.  He recommended a course of physical therapy and a 
 
            possible epidural steroid injection (Ex. 21).  The MRI did 
 
            not show any evidence of recurrent or residual disc 
 
            herniation (Ex. 22).
 
            
 
                 On November 25, 1991, Dr. Wirtz stated that physical 
 
            therapy is not indicated or required (Ex. 24).  He stated 
 
            that claimant was able to work within his physical 
 
            restrictions (Ex. 23).
 
            
 
                 Dr. Erwood wrote on March 6, 1992, that the pain which 
 
            claimant was experiencing in his left lower extremity was a 
 
            residual of the disc herniation that occurred on February 1, 
 
            1990, and led to a subsequent L5/S1 disc surgery (Ex. 25).  
 
            Dr. Wirtz also confirmed causal connection of the employment 
 
            to the injury and the injury to the disability by a letter 
 
            on March 11, 1992, in which he stated that the incident of 
 
            January 30, 1990 [sic], of falling on the ice initiated the 
 
            low back pain and left lower leg pain which resulted in the 
 
            eventual surgery, impairment rating and restrictions (Ex. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            26).
 
            
 
                 An independent medical examination was performed for 
 
            claimant by Martin S. Rosenfeld, D.O., on April 14, 1992, 
 
            who found that claimant did have residual numbness in the 
 
            lateral aspect of his left foot with some episodes of pain 
 
            in the left posterior thigh and calf which were especially 
 
            related to weather changes.  He said the postoperative MRI 
 
            revealed no evidence of recurrent disc or nerve root 
 
            pressure.  Dr. Rosenfeld found that the injury of February 
 
            1, 1990, and subsequent surgery caused a 15 percent 
 
            permanent physical impairment to the body as a whole based 
 
            upon the AMA Guides to the Evaluation of permanent 
 
            impairment.  Dr. Rosenfeld concluded by stating that 
 
            claimant will not be able to return to heavy labor or any 
 
            type of occupation that requires prolonged bending or 
 
            stooping or heavy lifting (Ex. 27).
 
            
 
                 On May 11, 1982, Dr. Wirtz issued his final 
 
            restrictions by stating that the work capacity evaluation 
 
            placed claimant in the medium to heavy work category with 
 
            limitations on lifting, bending and twisting (Ex. 28).
 
            
 
                 Claimant testified and contended that Dr. Wirtz told 
 
            him that scar tissue was pushing on a nerve.  This 
 
            contention is not supported by the medical evidence from Dr. 
 
            Wirtz or Dr. Rosenfeld, but can be implied from the medical 
 
            evidence of Dr. Erwood.  It does give a physical explanation 
 
            for claimant's continued difficulties.  Claimant testified 
 
            that Dr. Erwood told him the same thing, that scar tissue 
 
            was irritating the nerve.  The follow-up MRI requested by 
 
            Dr. Erwood does verify "some scar formation ventrally and 
 
            around the left S1 root." (Ex. 21)  This explanation would 
 
            tend to explain Dr. Erwood's diagnosis of failed back 
 
            syndrome, status post L5/S1 discectomy in September of 1990 
 
            (Exs. 21 and 22).  The reports of Dr. Wirtz and Dr. Erwood 
 
            and the functional capacity examination all performed after 
 
            the surgery verify that claimant definitely has physical 
 
            complaints in his back and legs.  The physical capacity 
 
            examination and Dr. Erwood verify that claimant has an 
 
            antalgic left-sided walk (Exs. 18, 20 21 and 22).  In any 
 
            event, it is clear that the L5/S1 laminectomy was not 
 
            completely successful.
 
            
 
                 In early 1991, Crawford & Company assigned Susan K. 
 
            White, M.S., for vocational rehabilitation assistance.  On 
 
            February 4, 1991, White saw no need for additional 
 
            vocational training.  She did note that claimant was unable 
 
            to ride in a car for more than 45 minutes without taking a 
 
            break.  She summarized that claimant's previous employments 
 
            included digging holes and concrete work to build swimming 
 
            pools, cooking and dish washing, running a band saw, meat 
 
            fryer and working on an assembly line. As claimant 
 
            contended, what White described as transferable 
 
            skills---ability to utilize time efficiently, being 
 
            dependable, being organized, ability to take and follow 
 
            directions and ability to work with people---are in reality 
 
            only attributes. It does not appear claimant does in fact 
 
            have any real transferable skills.  White proposed work in 
 
            the sedentary to light work classification (Ex. 30).  White 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            imposed a rigorous job search regime on claimant which 
 
            required a minimum of six to ten employer contacts per week, 
 
            signing up with job service, calling her weekly and mailing 
 
            the results of his work to her on a weekly basis (Ex. 32).
 
            
 
                 White completed several labor market surveys and sent 
 
            claimant lists of several prospective employers and 
 
            pertinent information about these jobs (Exs. 33-36).  On 
 
            April 8, 1991, White complained that claimant failed to keep 
 
            three scheduled appointments with her and had not followed 
 
            up on job leads that were provided to him (Ex. 37).  
 
            Claimant admitted that he did not get along well with White 
 
            because he felt that she was just trying to "slam" him into 
 
            any job rather than assist him to find appropriate work with 
 
            some permanency.
 
            
 
                 Claimant submitted his own personal notes of 57 places 
 
            where he had made job applications (Ex. 43).  He said some 
 
            of these jobs were suggested by White and others he found 
 
            for himself.
 
            
 
                 Claimant testified and White confirmed that claimant 
 
            did find good employment as an optical technician making 
 
            lenses for eyeglasses.  The starting wage was $4.75 per 
 
            hour.  Claimant testified that he had earned two raises 
 
            since he started and was earning $5.50 per hour at the time 
 
            of the hearing.  At the time of the injury, he was earning 
 
            $7.70 with employer and when he was terminated, he was 
 
            earning $7.85 per hour (Ex. 38).
 
            
 
                 Shortly before the hearing in May of 1992, claimant was 
 
            offered a job with employer at the same wage rate as at the 
 
            time of his injury and within his medical restrictions.  
 
            However, claimant was not able to take the job because he 
 
            failed a drug screen which was positive for traces of 
 
            marijuana in his system (Exs. 38-40).  No other specifics 
 
            were given about this eleventh hour job offer.  Nor was 
 
            there an explanation why it was made to claimant a month 
 
            prior to his workers' compensation scheduled hearing but had 
 
            not been available prior to that time.
 
            
 
                 Employability reports were prepared by White on May 5, 
 
            1992 and May 13, 1992 from which White concluded that 
 
            claimant had not sustained any percentage of vocational loss 
 
            (Exs. 39-41).
 
            
 
                 Claimant appears to be motivated to find work and White 
 
            commented that claimant was motivated to find work.  The 
 
            problem seemed to be whether claimant was going to follow 
 
            his own methods of finding work or follow the rigorous 
 
            regime imposed by White.
 
            
 
                 It is established that claimant was earning $7.85 per 
 
            hour when he was last gainfully employed for employer.  It 
 
            was also established that he is now earning at the time of 
 
            the hearing $5.50 per hour.  He is gainfully employed at a 
 
            job which he can perform, for which he is suited, which is 
 
            appropriate, and which appears to have some long time 
 
            permanency connected with it.  Based on these numbers, 
 
            claimant has sustained a 30 percent actual wage loss.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that he still has cramps in his back 
 
            and down his legs which appear to be related to the weather.  
 
            This has eliminated his ability to play basketball and 
 
            frisbee.  He is able to bow hunt and fish from the shore.  
 
            He is limited in his ability to walk and sit continuously 
 
            for longer than one or two hours.  He has been able to haul 
 
            gravel and brush in his truck.  He performs the yard work 
 
            for his parents.  He is fearful of reinjuring his back.  
 
            After he was laid off by employer in January of 1991, he has 
 
            not sought work there since.  Nor did the employer contact 
 
            him until the month prior to the hearing.
 
            
 
                 In his present job he stands most of the time.  He is 
 
            hopeful of receiving other raises in the future.  He would 
 
            accept even better employment if he could find it.  He is 
 
            not able to perform any of his former employments because 
 
            they all involve bending, twisting and heavy lifting.  For 
 
            the same reason, he is not able to perform the warehouse 
 
            work, assembly line work or truck driving work that he 
 
            performed for employer prior to this injury.
 
            
 
                 Claimant denied the allegation of White that claimant 
 
            told her he was not going to go to work until he had 
 
            obtained the $40,000 which his attorney told him that this 
 
            claim was worth.  Claimant could not recall whether the 
 
            attorney told him he had a $40,000 claim or a 40 percent 
 
            claim.
 
            
 
                 Wherefore, it is determined that the injury of February 
 
            1, 1990, was the cause of permanent disability.  Based upon 
 
            the following, (1) an impairment rating of 10 percent by Dr. 
 
            Wirtz, the treating physician, and an impairment rating of 
 
            15 percent by Dr. Rosenfeld, the evaluating physician; (2); 
 
            the restrictions of Dr. Wirtz that claimant cannot perform 
 
            excessive bending and twisting; (3) the restriction of Dr. 
 
            Rosenfeld that claimant is restricted from heavy labor or 
 
            any type of occupation that requires prolonged bending or 
 
            stooping or heavy lifting; (4) the limitation imposed by the 
 
            functional capacity examination that claimant can only lift 
 
            75 pounds infrequently and 35 pounds frequently and that 
 
            claimant now walks with a left sided antalgic walk; (5) that 
 
            claimant now suffers from failed back syndrome, status post 
 
            the lumbar laminectomy and discectomy of L5-S1 which may be 
 
            nerve root irritation caused by post surgical scar tissue 
 
            and which is manifested by pain in his back and down his 
 
            left leg and lack of sensation in portions of his left lower 
 
            extremity which limits his ability to sit or walk to 
 
            approximately two hours; (6) that claimant is foreclosed 
 
            from his previous unlimited employment opportunities in the 
 
            competitive employment market which included heavy and very 
 
            heavy lifting and he is now restricted to sedentary, light 
 
            or medium work; (7) that claimant is foreclosed from 
 
            performing his previous jobs for employer on account of 
 
            these restrictions; (8) based on claimant's young age of 26 
 
            years at the time of the injury; (9) based on claimant's 
 
            high school education and adaptability to learn a number of 
 
            different employments in the past and at the present time; 
 
            (10) the fact that claimant has few if any transferable 
 
            marketable skills; (11) the fact that claimant has 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            demonstrated motivation to work before and after this 
 
            injury, to find work and perform it on his own initiative; 
 
            (12) the fact that at the time of hearing claimant had 
 
            sustained a 30 percent actual loss of earnings; (13) based 
 
            upon all the facts in this case; (14) based upon all the 
 
            factors used to determine industrial disability, Christensen 
 
            v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (Appeal Decision March 26, 1985), 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (Appeal 
 
            Decision February 28, 1985); and (15) applying agency 
 
            expertise, Iowa Administrative Procedure Act 17A.14(5), it 
 
            is determined that claimant has sustained a 25 percent 
 
            industrial disability to the body as a whole.
 
            
 
                                 MEDICAL BENEFITS
 
            
 
                 It is determined that claimant is not entitled to be 
 
            paid for the treatment of Dr. Eilers after he was no longer 
 
            authorized by employer and the insurance carrier to see Dr. 
 
            Eilers.
 
            
 
                 The testimony disclosed that Dr. Eilers was paid 
 
            several hundred dollars for numerous manual manipulations, 
 
            ultrasound treatments and muscle stimulation treatments 
 
            around February 6, 1990 up to approximately April 16, 1990.  
 
            At that time, claimant admits that employer told him Dr. 
 
            Eilers was no longer authorized and if he continued to see 
 
            Dr. Eilers, he would have to pay the bill himself.
 
            
 
                 Iowa Code section 85.27 gives employer the right to 
 
            choose the care.  Defendants provided a reasonable care by 
 
            an orthopedic surgeon, a bone scan, two MRI's, a consulting 
 
            physician, and an independent medical examiner.  The 
 
            treatment also included a lumbar laminectomy of L5-S1 which 
 
            was indicated by the preoperative MRI.  Even though the 
 
            surgery was not entirely successful, defendants did provide 
 
            reasonable care as required by Iowa Code section 85.27.  
 
            Claimant contends he is entitled to the additional 
 
            treatments of Dr. Eilers because his problems were caused by 
 
            the work-related injury and Dr. Eilers' treatments gave him 
 
            relief from pain at least temporarily whereas the care of 
 
            Dr. Wirtz did not relieve his pain during this period of 
 
            time.  This is a good reason for seeking continued care from 
 
            Dr. Eilers, but since it was not authorized, and since 
 
            defendants do have the right by law to choose the medical 
 
            care, then the claim in the amount of $300 for additional 
 
            treatment by Dr. Eilers between April 16, 1990 and July 16, 
 
            1990, is denied (Ex. 47, p. 91).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions are made:
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of February 1, 
 
            1990, was the cause of permanent disability.  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).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 That claimant sustained an industrial disability of 25 
 
            percent to the body as a whole and is entitled to 125 weeks 
 
            of permanent partial disability benefits.  Iowa Code section 
 
            85.34(2)(u).
 
            
 
                 That claimant is not entitled to payment for the 
 
            medical bill of Dr. Eilers from April 16, 1990 to July 16, 
 
            1990, in the amount of $300 because it was not authorized.  
 
            Iowa Code section 85.87.
 
            
 
                                          ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred eighty-eight and 92/100 
 
            dollars ($188.92) per week for a total amount of twenty-
 
            three thousand six hundred fifteen dollars ($23,615), 
 
            commencing on February 4, 1991, as stipulated to by the 
 
            parties.
 
            
 
                 That defendants are entitled to a credit in the amount 
 
            of thirteen thousand two hundred twenty-four and 40/100 
 
            dollars ($13,224.40) which had been paid to claimant by the 
 
            time of the hearing and any post-prehearing payments paid to 
 
            claimant, pursuant to a plan to pay claimant seventy-five 
 
            (75) weeks of permanent partial disability benefits based on 
 
            an impairment rating of fifteen percent (15%).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 
            Mr Thomas M Plaza
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                                     2501; 5-1401; 5-1402.40; 5-1803
 
                                     Filed July 10, 1992
 
                                     Walter R. McManus
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         MATTHEW HUBBARD,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 942893
 
         LANCASTER COLONY CORPORATION, :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         AMERICAN MOTORISTS INSURANCE  :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1401; 5-1402.40; 5-1803
 
         Claimant awarded 25% industrial disability  based on impairment 
 
         ratings of 10% and 15% subsequent to a lumbar laminectomy, 
 
         restrictions of no excessive bending or twisting, physical 
 
         capacity examination lifting limits of 75 pounds occasionally and 
 
         30 pounds frequently, foreclosed from prior employment(s), age 
 
         26, high school education, few if any transferable skills, good 
 
         motivation to seek and find work, and a 30% actual loss of 
 
         earnings at the time of hearing.  The surgery was not completely 
 
         successful and left claimant with an antalgic walk and inability 
 
         to sit or walk for more than two hours at one time.
 
         
 
         2501
 
         Employer paid claimant's chiropractic bills until it became known 
 
         that his injury might be serious at which time employer retained 
 
         an orthopedic surgeon and told claimant that he was no longer 
 
         authorized to see the chiropractor and if he did that he would be 
 
         liable for the bill himself.  Payment of the additional 
 
         chiropractic bills was denied.  Claimant contended that 
 
         chiropractic care relieved the pain whereas the orthopedic 
 
         surgeon's treatment did not.  Claimant is entitled to reasonable 
 
         care.  He received it.  He was provided an orthopedic surgeon, x-
 
         rays, a bone scan, two MRI's, a lumbar laminectomy, a consulting 
 
         physician, and an independent medical examiner.  Employer has the 
 
         right to choose the care.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DONNA M. HEMANN,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 942936
 
            LIVING CENTER EAST,             :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            EMPLOYERS MUTUAL COMPANIES,     :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            issues
 
            Claimant has failed to comply with rule 343 IAC 4.28(4)"b."  
 
            The appeal will be considered generally and without regard 
 
            to specific issues.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed February 20, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 *****
 
            Claimant, age 57, worked for LC, a nursing home, for almost 
 
            five years as a certified nurse's aide.  Claimant was 
 
            terminated in June 1990 for her inability to return to work 
 
            after the injury herein.  Claimant's duties required her to 
 
            lift heavy residents for bathing, feeding and dressing.  
 
            Claimant was paid $4.35 an hour in her work.
 
            On or about February 15, 1990, claimant injured her left 
 
            knee while working at LC.  The injury consisted of a torn 
 
            meniscus cartilage in the knee.  The injury required 
 
            surgical treatment and a long period of recovery lasting 
 
            several months.
 
            ***** Several witnesses testified on behalf of defendants 
 
            that they heard claimant state after the alleged injury that 
 
            she did not know how or where she was injured.  Claimant 
 
            admits to only stating that she did not know how she was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injured.  In any event, not knowing how or where the injury 
 
            occurred is not fatal to a claim.
 
            Claimant testified that the severe knee pain occurred at 
 
            work on the morning of February 15, 1990. ***** Claimant 
 
            asked to leave early due to her pain and she went 
 
            immediately to her family doctor, William Finn, M.D.  
 
            Although Dr. Finn did not report a specific injury in his 
 
            office note and noted pain the night before, he has opined 
 
            that claimant's knee problems on that date were work 
 
            related.
 
            Dr. Finn referred claimant immediately to an orthopedic 
 
            surgeon, Fred Pilcher, M.D., who also saw claimant on 
 
            February 15, 1990.  Dr. Pilcher reported in his office note 
 
            that claimant had knee pain for a couple of weeks.  He does 
 
            not mention an injury in his report until the following 
 
            appointment on February 23, 1990, when he reports that 
 
            claimant told him she twisted the knee at work.  He then 
 
            stated as follows:  "I questioned her about this again.  
 
            This is important because she has no means of support or 
 
            insurance other than workmen's compensation."  He goes on to 
 
            state:  "I think this lady probably has an acute meniscus 
 
            pathology for whatever reason superimposed on probably 
 
            chronic degenerative arthritis."
 
            Clearly, claimant had serious preexisting arthritis.  
 
            Claimant admitted this at hearing stating that she was 
 
            always worse in the wintertime and the winter of 1990 was no 
 
            different.  However, she maintains that her pain grew worse 
 
            after lifting residents at work.  She said that by the time 
 
            she got to Dr. Finn her entire leg was swollen.  ***** The 
 
            fact that she left early due to leg pain to see her doctor 
 
            is not disputed.  Dr. Pilcher states in a letter to defense 
 
            counsel that the question of a work injury "comes down to 
 
            Donna Hemann's documentation of a specific injury that may 
 
            have caused this meniscus tear.  I obviously have no proof 
 
            of it other than which (sic) is stated in the note."  *****
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed February 20, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that claimant received an injury arising out of and 
 
            in the course of employment.  The words "out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time and place and circumstances of the 
 
            injury.  See generally, Cedar Rapids, Comm. Sch. Dist. v. 
 
            Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments.  A work connected injury which more than 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            [Claimant bears the burden of proof to show by a 
 
            preponderance of the evidence that she has suffered an 
 
            injury arising out of and in the course of her employment.  
 
            Claimant alleges a traumatic injury at work on February 19, 
 
            1990.  The record shows that when claimant presented herself 
 
            to two different physicians on February 15, 1990, the 
 
            alleged date of injury, she did not relate work activity as 
 
            the cause of her pain.  On the contrary, claimant told one 
 
            physician that she had been up all night the night before 
 
            with leg pain; she told the other that she had leg pain for 
 
            two weeks prior to the alleged date of injury.
 
            Claimant was unable to relate a specific incident as 
 
            constituting an injury.  Although this is not necessarily 
 
            fatal to her claim, the preponderance of the evidence 
 
            indicates it is more likely that claimant's preexisting 
 
            arthritis, which was apparently symptomatic in the days 
 
            leading up to the alleged injury, was more likely a cause of 
 
            her condition than a vague, unspecified work incident.  
 
            Claimant's comments to her physicians on the same day as the 
 
            alleged injury are in contradiction with her testimony at 
 
            the hearing.  Her comments to the physicians were made 
 
            contemporaneously with the alleged injury--in fact, on the 
 
            same day; whereas her testimony was much later and in 
 
            hindsight.  The failure of claimant to treat her condition 
 
            as a work injury by not filling out appropriate forms, even 
 
            after this was pointed out to her by supervisory personnel, 
 
            further corroborates the absence of a work injury.  
 
            Defendants are not responsible for compensating claimant's 
 
            preexisting arthritis condition.  Claimant has failed to 
 
            carry her burden of proof to show that she has suffered a 
 
            work injury arising out of and in the course of her 
 
            employment.]
 
            WHEREFORE, the decision of the deputy is reversed.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant take nothing from these proceedings.
 
            That claimant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Bobenhouse
 
            Attorney at Law
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1120 2nd Ave. SE
 
            Cedar Rapids, Iowa 52403
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1108
 
            Filed December 22, 1992
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DONNA M. HEMANN,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 942936
 
            LIVING CENTER EAST,             :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            EMPLOYERS MUTUAL COMPANIES,     :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            1108
 
            Claimant alleged her knee condition was caused by a work 
 
            injury on a specific date, but could not identify a specific 
 
            work incident as the cause of her back pain.  Prior to her 
 
            alleged injury at work, claimant made several statements 
 
            that her preexisting knee arthritis had been bothering her, 
 
            and that she had been up all night the night before with 
 
            pain from her arthritis.  Claimant failed to carry her 
 
            burden of proof that she had suffered a work injury and that 
 
            her condition was causally related to a work injury.  Deputy 
 
            reversed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA M. HEMANN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 942936
 
            LIVING CENTER EAST,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Donna M. 
 
            Hemann, claimant, against Living Center East, employer 
 
            (hereinafter referred to as LC), and Employers Mutual 
 
            Companies, insurance carrier, defendants, for workers' com
 
            pensation benefits as a result of an alleged injury on 
 
            February 15, 1990.  On January 30, 1992, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing. 
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and LC at the time of the alleged injury.
 
            
 
                 2.  If defendants are held liable for the alleged 
 
            injury, claimant is entitled to healing period benefits from 
 
            February 15, 1990 through July 7, 1990 and to 6.6 weeks of 
 
            permanent partial disability from July 8, 1990, for a three 
 
            percent loss of use of her left leg.
 
            
 
                 3. At the time of injury, claimant's gross rate of 
 
            weekly compensation was $174.00, she was single and she was 
 
            entitled to only one exemption.  This establishes a weekly 
 
            rate of compensation of $111.85, according to the industrial 
 
            commissioner's published rate booklet for FY 90.
 
            
 
                  4.  With reference to the medical bills submitted by 
 
            claimant at the hearing, it was stipulated that the medical 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            service providers involved would testify that the charges 
 
            and treatment rendered are reasonable and necessary and 
 
            defendants are not offering contrary evidence.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  Whether claimant received an injury arising out of 
 
            and in the course of employment on February 15, 1990, 
 
            including its causal connection to the stipulated disabili
 
            ties; and, 
 
            
 
                 II. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue as to the 
 
            occurrence of the injury.  From her demeanor while testify
 
            ing, claimant is found credible.
 
            
 
                 Claimant, age 57, worked for LC, a nursing home, for 
 
            almost five years as a certified nurse's aide.  Claimant was 
 
            terminated in June 1990 for her inability to return to work 
 
            after the injury herein.  Claimant's duties required her to 
 
            lift heavy residents for bathing, feeding and dressing.  
 
            Claimant was paid $4.35 an hour in her work.
 
            
 
                 On or about February 15, 1990, claimant injured her 
 
            left knee while working at LC.  The injury consisted of a 
 
            torn meniscus cartilage in the knee.  The injury required 
 
            surgical treatment and a long period of recovery lasting 
 
            several months.
 
            
 
                 Claimant's demeanor at hearing was very important to 
 
            the finding of a work injury.  Several witnesses testified 
 
            on behalf of defendants that they heard claimant state after 
 
            the alleged injury that she did not know how or where she 
 
            was injured.  Claimant admits to only stating that she did 
 
            not know how she was injured.  In any event, not knowing how 
 
            or where the injury occurred is not fatal to a claim.
 
            
 
                 Claimant testified that the severe knee pain occurred 
 
            at work on the morning of February 15, 1990 and she is 
 
            believed.  Claimant asked to leave early due to her pain and 
 
            she went immediately to her family doctor, William Finn, 
 
            M.D.  Although Dr. Finn did not report a specific injury in 
 
            his office note and noted pain the night before, he has 
 
            opined that claimant's knee problems on that date were 
 
            work-related.
 
            
 
                 Dr. Finn referred claimant immediately to an orthopedic 
 
            surgeon, Fred Pilcher, M.D., who also saw claimant on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            February 15, 1990.  Dr. Pilcher reported in his office note 
 
            that claimant had knee pain for a couple of weeks.  He does 
 
            not mention an injury in his report until the following 
 
            appointment on February 23, 1990, when he reports that 
 
            claimant told him she twisted the knee at work.  He then 
 
            stated as follows:  "I questioned her about this again.  
 
            This is important because she has no means of support or 
 
            insurance other than workmen's compensation."  He goes on to 
 
            state:  "I think this lady probably has an acute meniscus 
 
            pathology for whatever reason superimposed on probably 
 
            chronic degenerative arthritis."
 
            
 
                 Clearly, claimant had serious pre-existing arthritis.  
 
            Claimant admitted this at hearing stating that she was 
 
            always worse in the wintertime and the winter of 1990 was no 
 
            different.  However, she maintains that her pain grew worse 
 
            after lifting residents at work.  She said that by the time 
 
            she got to Dr. Finn her entire leg was swollen.  Claimant is 
 
            believed.  The fact that she left early due to leg pain to 
 
            see her doctor is not disputed.  Dr. Pilcher states in a 
 
            letter to defense counsel that the question of a work injury 
 
            "comes down to Donna Hemann's documentation of a specific 
 
            injury that may have caused this meniscus tear.  I obviously 
 
            have no proof of it other than which (sic) is stated in the 
 
            note."  Essentially, the doctor regards the issue as one of 
 
            claimant's credibility.  As set forth above, claimant is 
 
            found credible.  Although the various office notes on 
 
            February 15, 1990, can be interpreted against the claimant, 
 
            they are not verbatim transcripts of what was said.  They do 
 
            not have the weight of live, credible testimony.  
 
            Furthermore, these office notes can be interpreted in a man
 
            ner consistent with claimant's story if you view the injury 
 
            as one which was superimposed upon an already existing 
 
            chronic and painful arthritis problem, as did Dr. Pilcher.
 
            
 
                 The healing period and permanent partial disability 
 
            stipulations were based upon the uncontroverted views of Dr. 
 
            Pilcher.  It is specifically found that this disability is 
 
            related to the meniscus tear which has been found to be 
 
            caused by the February 15, 1990 injury.
 
            
 
                 It is further found that the medical expenses listed in 
 
            the prehearing report constituted reasonable and necessary 
 
            treatment of the work injury of February 15, 1990.  All were 
 
            related to Dr. Finn's and Dr. Pilcher's treatment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury aris
 
            ing out of and in the course of employment.  The words "out 
 
            of" refer to the cause or source of the injury.  The words 
 
            "in the course of" refer to the time and place and circum
 
            stances of the injury.  See generally, Cedar Rapids, Comm. 
 
            Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments. A work connected injury which 
 
            more than slightly aggravates the condition is considered to 
 
            be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            620, 106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 In the case sub judice, the issue was only factual and 
 
            a matter of claimant's credibility.  Claimant was found 
 
            credible and she established her work injury.  The extent of 
 
            claimant's entitlement to disability benefits from this 
 
            injury was stipulated.
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, the requested expenses were found 
 
            related to the injury and will be awarded.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant six point six 
 
            (6.6) weeks of permanent partial disability benefits at a 
 
            rate of one hundred eleven and 85/l00 dollars ($111.85) per 
 
            week from July 8, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from February 15, 1990 through July 7, 1990, at the 
 
            rate of one hundred eleven and 85/l00 dollars ($111.85) per 
 
            week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Bobenhouse
 
            Attorney at Law
 
            1120 2nd Ave SE
 
            Cedar Rapids  IA  52403
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed February 20, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA M. HEMANN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 942936
 
            LIVING CENTER EAST,           :
 
                                          :    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.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
         MICHAELA ERICKSON,  
 
               
 
          Claimant,                        File No. 943125
 
               
 
         vs.        
 
                                        A R B I T R A T I O N
 
         K MART CORPORATION, 
 
                                            D E C I S I O N
 
          Employer,  
 
          Self-Insured,    
 
          Defendant.     
 
         ____________________________________________________________
 
                        STATEMENT OF THE CASE           
 
           
 
           Claimant filed a petition for arbitration as a result 
 
         of injuries to her right and left knees which occurred on 
 
         February 17, 1990 while employed with K Mart.  The 
 
         employer failed to appear after being properly served with 
 
         the original notice and petition.  The employer was held in 
 
         default on March 13, 1995 due to the failure to appear and 
 
         defend the action.  To date of hearing the employer has 
 
         failed to appear and respond. 
 
           
 
           This case was heard and fully submitted at Davenport, 
 
         Iowa on May 9, 1995.  The record in the proceeding consists 
 
         of claimant exhibits A through E and testimony from Michaela 
 
         Erickson.
 
           
 
           Lawrence J. Lammers, Attorney at Law, represented 
 
         claimant.  The employer was not represented at the time of 
 
         hearing.
 
         
 
                               ISSUES
 
           
 
           The issues presented for determination are: 
 
           
 
           1.  The nature and extent of permanent disability 
 
         caused by the February 17, 1990 injury;
 
           
 
           2.  Claimant's entitlement to Iowa Code section 85.27 
 
         benefits; and 
 
           
 
           3.  Claimant's entitlement to Iowa Code section 86.13 
 
         penalty benefits due to nonpayment of permanent disability.
 
         
 
                          FINDINGS OF FACT
 
           
 
           Having heard the testimony of the witness and having 
 
         considered all of the evidence in the record, the deputy 
 
         industrial commissioner finds:
 
           
 
           Claimant, Michaela Erickson, presents as an extremely 
 
         credible witness based upon her appearance, action and 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
         demeanor at the time of hearing and testimony which is 
 
         consistent with exhibits A through E.
 
           
 
           Claimant began work for the employer in 1987.  On 
 
         February 17, 1990, claimant sustained traumatic bilateral 
 
         injuries to her right and left lower extremities.  Initially 
 
         claimant suffered from a more severe problem with the left 
 
         knee.  Pain resolved under conservative care from company 
 
         selected doctors.  Claimant's right knee pain became more 
 
         prominent with time eventually resulting in a right 
 
         prepatellar bursa surgery on January 19, 1991.
 
           
 
           Claimant sustained intermittent periods of temporary 
 
         disability caused by the work injury of February 17, 1990.  
 
         Claimant was off work beginning February 18, 1990 through 
 
         February 20, 1990, March 9, 1990 through March 28, 1990 and 
 
         finally January 31, 1991 through March 10, 1991.
 
           
 
           Claimant incurred 374 miles of driving traveling to and 
 
         from physical therapy and medical appointments.  The 
 
         transportation was causally connected to the February 17, 
 
         1990 injury medical treatment.  
 
           
 
           Claimant incurred considerable medical expenses for 
 
         treatment of the February 17, 1990 work injury.  Medical 
 
         expenses causally connected to the February 17, 1990 injury 
 
         which remain unpaid total $1,231.75.  
 
           
 
           Robert J. Chesser, M.D., an employer selected treating 
 
         doctor opined on May 4, 1992, that claimant sustained 4 
 
         percent permanent partial impairment to the right lower 
 
         extremity causally connected to the February 17, 1990 
 
         injury.  The deputy industrial commissioner finds that the 
 
         February 17, 1990 injury caused permanent disability.  The 
 
         record is devoid of evidence which would indicate a break in 
 
         the causal connection or a lack of permanent disability.  
 
         The employer failed to make payment for permanent disability 
 
         caused by the February 17, 1990 injury, notwithstanding the 
 
         May 1992 report from an authorized treating physician 
 
         indicating 4 percent impairment to the right lower 
 
         extremity.  
 
           
 
           Claimant is now permanently restricted from repetitive 
 
         kneeling and bending on the right knee due to the February 
 
         17, 1990 injury.
 
           
 
           Employer's failure to pay permanent partial disability 
 
         benefits for the left lower extremity demonstrates an 
 
         unreasonable denial of weekly benefits.  Furthermore, the 
 
         employer's failure to promptly pay medical expenses and 
 
         mileage for causally connected treatment indicates an 
 
         unreasonable denial of weekly benefits on the part of the 
 
         employer with respect to good faith resolution of this 
 
         matter.
 
         
 
                    REASONING AND CONCLUSIONS OF LAW
 
           
 
           The first issue concerns claimant's entitlement to 
 
         permanent disability benefits under chapter 85 of the Iowa 
 
         Code.
 
           
 
           The right of an employee to receive compensation for 
 
         injuries sustained is statutory. The statute conferring this 
 
         right can also fix the amount of compensation payable for 
 
         different specific injuries.  The employee is not 
 
         entitled to compensation except as the statute provides.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
         Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
           
 
           Compensation for permanent partial disability begins at 
 
         termination of the healing period.  Section 85.34(2).  
 
         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. Simbro v. 
 
         Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves 
 
         v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin 
 
         v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
           
 
           An injury to a scheduled member may, because of after 
 
         effects or compensatory change, result in permanent 
 
         impairment of the body as a whole.  Such impairment may in 
 
         turn be the basis for a rating of industrial disability.  It 
 
         is the anatomical situs of the permanent injury or 
 
         impairment which determines whether the schedules in section 
 
         85.34(2)(a) - (t) are applied.  Lauhoff Grain v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-
 
         American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. 
 
         Pooley Lbr. Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
         Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
           
 
           The deputy industrial commissioner holds that claimant 
 
         sustained permanent disability to the right lower extremity.  
 
         The medical records clearly indicate the situs of injury as 
 
         the right knee.  Therefore, benefits cannot be granted to 
 
         the body as a whole and must be limited to the scheduled 
 
         member pursuant to Iowa Code section 85.34(2)(o).  The 
 
         deputy industrial commissioner holds that claimant sustained 
 
         10 percent permanent partial disability to the right lower 
 
         extremity pursuant to Iowa Code section 85.34(2)(o).  The 
 
         severe work restrictions demonstrate functional disability 
 
         greater than the rating of permanent impairment.
 
           
 
           The second issue concerns claimant's entitlement to 
 
         Iowa Code section 85.27 medical benefits.
 
           
 
           The employer shall furnish reasonable surgical, 
 
         medical, dental, osteopathic, chiropractic, podiatric, 
 
         physical rehabilitation, nursing, ambulance and hospital 
 
         services and supplies for all conditions compensable under 
 
         the workers' compensation law.  The employer shall also 
 
         allow reasonable and necessary transportation expenses 
 
         incurred for those services.  The employer has the right to 
 
         choose the provider of care, except where the employer has 
 
         denied liability for the injury.  Section 85.27.  Holbert 
 
         v. Townsend Engineering Co., Thirty-second Biennial 
 
         Report of the Industrial Commissioner 78 (Review-reopen 
 
         1975).
 
           
 
           The deputy industrial commissioner holds that claimant 
 
         incurred $1,231.75 in causally connected medical expenses 
 
         which remain unpaid.  The employer is completely responsible 
 
         for payment of those medical expenses because liability has 
 
         been established and the expenses are causally connected to 
 
         the work injury.  It is also noted that the medical expenses 
 
         were incurred with employer selected medical providers.  
 
           
 
           The deputy industrial commissioner holds that claimant 
 
         has established entitlement to transportation expenses 
 
         incurred for treatment of the February 
 
         17, 1990 injury amounting to 374 miles at the rate of 21 
 
         cents per mile for a total of $78.54.
 
           
 

 
 
 
 
 
 
 
 
 
 
 
 
 
           The final issue concerns claimant's entitlement to Iowa 
 
         Code section 86.13 penalty benefits due to the failure to 
 
         promptly pay weekly permanent disability benefits.
 
           
 
           Section 86.13 permits an award of up to 50 percent of 
 
         the amount of benefits delayed or denied if a delay in 
 
         commencement or termination of benefits occurs without 
 
         reasonable or probable cause or excuse.  The standard for 
 
         evaluating the reasonableness of defendants' delay in 
 
         commencement or termination is whether the claim is fairly 
 
         debatable.  Where a claim is shown to be fairly debatable, 
 
         defendants do not act unreasonably in denying payment.  See 
 
         Stanley v. Wilson Foods Corp., File No. 753405 (App. 
 
         August 23, 1990); Seydel v. Univ. of Iowa Physical 
 
         Plant, File No. 818849 (App. November 1, 1989).
 
           
 
           The deputy industrial commissioner holds that the claim 
 
         was not fairly debatable.  The employer's denial of weekly 
 
         compensation for permanent disability caused by the February 
 
         17, 1990 work injury was unreasonable.  The undisputed 
 
         medical evidence indicates 4 percent impairment to the right 
 
         lower extremity.  The impairment rating was issued by an 
 
         employer selected physician.  No evidence indicates a fairly 
 
         debatable claim with respect to 4 percent permanent partial 
 
         disability to the right lower extremity.  Therefore, a 50 
 
         percent penalty is assessed entitling claimant to an 
 
         additional 2 percent permanent disability to the right lower 
 
         extremity totalling 4.4 weeks.  
 
           
 
           Claimant sustained intermittent periods of temporary 
 
         disability.  Permanent disability benefits generally 
 
         commence at the termination of the healing period.  In this 
 
         situation the commencement date for permanent disability is 
 
         held to be February 21, 1990 pursuant to Brincks v. Case 
 
         Power & Equipment, File No. 843233 (Appeal April 18, 
 
         1990).  The permanent disability shall be paid 
 
         intermittently between the remaining healing periods.  
 
         
 
                               ORDER
 
           
 
           THE DEPUTY INDUSTRIAL COMMISSIONER ORDERS:
 
           
 
           Defendant, K Mart, shall pay claimant twenty-two (22) 
 
         weeks of permanent disability benefits at the rate of 
 
         eighty-eight and 79/100 dollars ($88.79) per week paid 
 
         intermittently between healing periods commencing February 
 
         21, 1990.
 
           
 
           Defendant shall pay claimant four point four (4.4) 
 
         weeks of Iowa Code section 86.13 penalty benefits at the 
 
         rate of eighty-eight and 79/100 dollars ($88.79) per week.  
 
         Interest on penalty benefits commences on the date of this 
 
         arbitration decision.
 
           
 
           Defendant shall pay claimant one thousand two hundred 
 
         thirty-one and 75/100 dollars ($1,231.75) in Iowa Code 
 
         section 85.27 expenses.
 
           
 
           Defendant shall pay claimant seventy-eight and 54/100 
 
         dollars ($78.54) in Iowa Code section 85.27 transportation 
 
         expenses.
 
           
 
           It is further ordered that defendant shall receive 
 
         credit for benefits previously paid if applicable.
 
           
 
           It is further ordered that all accrued benefits are to 
 

 
 
 
 
 
 
 
 
 
         be paid in a lump sum.
 
           
 
           It is further ordered that interest shall accrue 
 
         pursuant to Iowa Code section 85.30 from the commencement 
 
         date for payment of permanent disability benefits unless 
 
         otherwise specified in the order.
 
           
 
           It is further ordered that costs of this action are 
 
         assessed against defendant, K Mart, pursuant to rule 343 IAC 
 
         4.33 in the amount of one hundred eighty-five and 58/100 
 
         dollars ($185.58), and such other costs as certified by 
 
         claimant.
 
           
 
           It is further ordered that defendant shall file a claim 
 
         activity report pursuant to rule 343 IAC 3.1.
 
           
 
           Signed and filed this ____ day of May, 1995.
 
         
 
         
 
         
 
         
 
                                   ______________________________
 
                                   MARLON D. MORMANN
 
                                   DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Bldg.
 
         Davenport, IA  52801
 
         
 
         K Mart Self Ins. Program
 
         Attn:  Ione Singleton
 
         3100 W. Big Beaver
 
         Troy, MI  48084
 
         REGULAR AND CERTIFIED MAIL
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1803, 5-2500, 5-4000.2
 
                                     Filed May 16, 1995
 
                                     Marlon D. Mormann
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
         MICHAELA ERICKSON,  
 
               
 
          Claimant,                         File No. 943125
 
               
 
         vs.        
 
                                         A R B I T R A T I O N
 
         K MART CORPORATION, 
 
                                            D E C I S I O N
 
          Employer,  
 
          Self-Insured,   
 
          Defendant.     
 
         ____________________________________________________________
 
        5-1803, 5-2500, 5-4000.2
 
           
 
           Employer was previously held in default for a failure 
 
         to appear and defend the case.  Employer failed to 
 
         participate at the time of hearing.  The evidence was 
 
         undisputed that claimant sustained 4 percent permanent 
 
         impairment to the right lower extremity.  Claimant was 
 
         granted 10 percent permanent disability to the scheduled 
 
         right lower extremity pursuant to Iowa Code section 
 
         85.34(2)(o) due to severe work restrictions.  A 50 percent 
 
         penalty was added granting claimant an additional 2 percent 
 
         disability to the right lower extremity.  Unpaid Iowa Code 
 
         section 85.27 medical and transportation expenses were 
 
         ordered paid.
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         DARREL STEPHAN,     
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File Nos.  943141
 
         STATE OF IOWA,                                1013370
 
                   
 
              Self-Insured,                     A P P E A L
 
              Employer, 
 
                                              D E C I S I O N
 
         and       
 
                   
 
         SECOND INJURY FUND OF IOWA,   
 
                   
 
              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 
 
         January 4, 1994 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis:
 
         Second Injury Fund shall pay the costs of the appeal, including 
 
         the preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Stephen D. Lombardi
 
         Attorney at Law
 
         10101 University Ave  STE 202
 
         Clive, Iowa  50325
 
         
 
         Ms. Iris Post
 
         Attorney at Law
 
         2222 Grand Ave
 
         P O Box 10434
 
         Des Moines, Iowa  50306
 
         
 
         Ms. Shirley Steffe
 
         Assistant Attorney General
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
                                                1702 1806 3202 2206 
 
                                                2207 2209 2901
 
                                                Filed May 13, 1994
 
                                                BYRON K. ORTON
 
                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DARREL STEPHAN,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File Nos.  943141
 
            STATE OF IOWA,                               1013370
 
                      
 
                 Self-Insured,                    A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1702 1806 3202
 
            Claimant who had degenerative changes in his knees prior to 
 
            the injury which is the subject of this case was held 
 
            qualified for Second Injury Fund benefits even though no 
 
            physician provided a rating of impairment or opinion as to 
 
            the extent of impairment that preexisted.  It was evident 
 
            from surgical findings that some permanent disability had 
 
            preexisted.  Based upon the extent of arthritic changes 
 
            which were shown from evidence in the record a 10 percent 
 
            permanent impairment of each leg was found to preexist the 
 
            injury in this case.  The Second Injury Fund entitlement was 
 
            determined accordingly.  
 
            
 
            2206 2207 2209 2901
 
            Claimant brought three claims but there was one injury.  His 
 
            claim of injury based upon a pulmonary embolism which 
 
            developed as a result of the surgery was held to be sequela 
 
            of the original injury and not a separate injury.  An 
 
            unsuccessful attempt to resume employment aggravated the 
 
            claimant's condition.  That was held to be sequela of the 
 
            original injury although it could have properly been 
 
            characterized as a separate aggravation type of injury.  The 
 
            original injury was held to be the principle cause and 
 
            therefore the entire case was decided under that original 
 
            date of injury.  
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DARREL STEPHAN,               :    File Nos. 943141
 
                                          :             1013369
 
                 Claimant,                :             1013370
 
                                          :
 
            vs.                           :
 
                                          :      
 
            STATE OF IOWA,                :
 
                                          :  A R B I T R A T I O N
 
                 Self-Insured,            :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in which Darrel Stephan seeks 
 
            additional weekly compensation based upon a stipulated 
 
            injury of November 8, 1989 and alleged injuries of September 
 
            13, 1990 and February 13, 1991.  The case was heard and 
 
            fully submitted at Des Moines, Iowa, on October 25, 1993.  
 
            The evidence consists of testimony from Darrel Stephan, 
 
            joint exhibits A, B, C, D, E; claimant's exhibits 2, 3, 4, 
 
            7, 9, 11, 12, 13, 14; and defendants' exhibits F and G.  The 
 
            exhibits received into evidence in this case contain several 
 
            hundred pages.  The exhibits are replete with duplication 
 
            and materials which are irrelevant and immaterial to the 
 
            disputed issues in this case.  Counsel are advised that in 
 
            future cases their assurances of relevancy, materiality and 
 
            lack of duplication will not necessarily be relied upon when 
 
            receiving exhibits.  A page by page showing of admissibility 
 
            may be required.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made:
 
            
 
                 Darrel Stephan injured his left knee on October 8, 
 
            1989, when a step on a truck broke.  This incident was not 
 
            Darrel's first experience with knee problems.  His right 
 
            knee had been injured at work previously when he stepped 
 
            into a hole.  On July 17, 1989, John A. Grant, an orthopedic 
 
            surgeon, had performed arthroscopic surgery on the right 
 
            knee and found that it was afflicted with early mild 
 
            degenerative changes in the posterior portion of the medial 
 
            compartment.  (exhibit E, page 4, ex. 2-2).  Following the 
 
            November 8, 1989 injury, Darrel received care from Dr. Grant 
 
            for the left knee.  On March 26, 1990, arthroscopic surgery 
 

 
            
 
            Page   2
 
            
 
            
 
            was performed on Darrel's left knee and it also disclosed 
 
            early degenerative osteoarthritis.  (ex. E, p. 140).
 
            
 
                 Darrel's care was changed to Peter D. Wirtz, M.D., who 
 
            performed a tibial osteotomy on claimant's left leg on 
 
            September 4, 1990.  (ex. E, p. 105).  Shortly following the 
 
            surgery, claimant developed pulmonary emboli and 
 
            thrombophlebitis in his lower left leg, all as a result of 
 
            that surgery.  (ex. D, pp. 108-112, 131-135; ex. E, p. 19).  
 
            There is no indication in the record of this case that 
 
            either the pulmonary emboli or the thrombophlebitis has 
 
            produced any permanent impairment, disability or 
 
            restrictions upon Darrel's activities.
 
            
 
                 After a course of care and recuperation, Dr. Wirtz 
 
            released Darrel to resume employment effective January 7, 
 
            1991.  (ex. E, p. 110).  Darrel initially performed 
 
            restricted duty and then attempted to resume regular duty.  
 
            He was unable to do so and aggravated his knee.  He was 
 
            taken off work by Michael Makowski, M.D., commencing on 
 
            February 18, 1991.  (ex. E, pp. 86-87).  On April 11, 1991, 
 
            Dr. Makowski indicated that claimant had recovered as much 
 
            as could be expected and recommended that he enter into 
 
            vocational rehabilitation.  (ex. E, pp. 92-95).  It is 
 
            undisputed that Darrel cannot resume working as an equipment 
 
            operator for the Department of Transportation.  (ex. D, pp. 
 
            14-15).  It has been recommended that he restrict his 
 
            activity to avoid extended walking, standing and carrying 
 
            types of activities.  (ex. A, pp. 45-58; ex. D, pp. 37, 55; 
 
            ex. E, pp. 115-116, 118-121; exs. 2-1, 2-3).  It should be 
 
            noted that the assessment of this case made by Marvin H. 
 
            Dubansky, M.D., is found to be accurate and correct.  
 
            Darrel's last request for a leave of absence did not suit 
 
            the employer and his employment was terminated.  It is noted 
 
            that there is some apparent dispute regarding the method in 
 
            which Darrel requested his last leave of absence.  It is 
 
            noted that the form of the last request was similar to the 
 
            form of the previous request which had been granted (ex. D, 
 
            pp. 165, 172; ex. 12).  As indicated by the resident 
 
            maintenance engineer, Michael J. Kennerly, granting of 
 
            leaves is at the sole discretion of the appointing 
 
            authority.  (ex. 13).
 
            
 
                 It is found that there is but one injury in this case, 
 
            that being the injury of November 8, 1989.  The other events 
 
            which are alleged as injuries in files 1013369 and 1013370 
 
            are merely sequela to that original injury.  While it is 
 
            true that the alleged injury of February 13, 1991, is to 
 
            some extent an aggravation of a preexisting condition, the 
 
            preexisting condition is the November 8, 1989 injury.  The 
 
            fact that the claimant continued to work for several months 
 
            also adds a cumulative injury component to this case.  The 
 
            stronger weight of the evidence however, is that this is a 
 
            traumatic injury of November 8, 1989, rather than a later 
 
            cumulative injury.  This case involves no issues of the 
 
            statute of limitations and the selection of the date is 
 
            academic since it does not affect the outcome of the case.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Since the duration and extent of trauma associated with the 
 
            events of February 13, 1991, seem relatively insignificant, 
 
            it is found that the principle cause of the disability is 
 
            the November 8, 1989 injury.  
 
            
 
                 Darrel had a varied work history before commencing his 
 
            employment with the Department of Transportation.  He is a 
 
            high school graduate and served in the air force as a fire 
 
            fighter.  He has farmed and driven trucks.  Part of his 
 
            truck driving was self-employment.  
 
            
 
                 Clark H. Williams, a qualified vocational 
 
            rehabilitation consultant, indicated that Darrel is 
 
            selectively employable.  Claimant's own assessment of his 
 
            situation as found in his answer to interrogatory number 14 
 
            is correct.  (ex. A, p. 16).  He stated, "At this point I am 
 
            completely disabled.  I need to go back to school because 
 
            what I know how to do won't get me a job."  
 
            
 
                 The Department of Transportation chose to terminate 
 
            Darrel's employment rather than retain him in unpaid leave 
 
            status.  While they have a policy dealing with leaves of 
 
            absence for injured employees, it must be recognized that 
 
            the adoption and implementation of that policy is entirely 
 
            voluntary.  There is no statute which requires the State of 
 
            Iowa or its Department of Transportation to have a 
 
            regulation or policy which compels individuals who are off 
 
            work due to work-related injuries to apply for leaves of 
 
            absence during the period of their disability in order to 
 
            avoid termination of employment.  There is no law or 
 
            statutory prohibition which would prevent the Department of 
 
            Transportation from moving Darrel into an office job if they 
 
            were so inclined.  When it is considered that the Department 
 
            of Transportation has many employees who perform many 
 
            different functions, it is strong evidence of a very high 
 
            degree of disability that the department could not find a 
 
            single job within its entire work force which Darrel was 
 
            qualified and physically capable of performing.  It is very 
 
            convincing that Darrel will have extreme difficulty 
 
            obtaining employment of any type with any other employer.  
 
            While there is a recall procedure available there is 
 
            nothing, other than the employer's conscious decision, which 
 
            prevented the employer from helping Darrel find an 
 
            appropriate placement within state government.  Claimant was 
 
            recalled to an equipment operator position by letter dated 
 
            July 13, 1993.  He did not respond since the physicians have 
 
            all indicated that he is not capable of performing that 
 
            work.  It should be noted that his performance evaluations 
 
            were generally favorable.  (ex. D, pp. 173-246)  
 
            
 
                 In view of the condition of Darrel's knees, it is 
 
            apparent that he will have extreme difficulty in obtaining 
 
            other employment unless he obtains retraining.  Darrel has 
 
            acted quite reasonably in seeking retraining.  At this point 
 
            in time it is too early to predict what the outcome of that 
 
            retraining will be if he is able to complete it 
 
            successfully.  The evidence in this case shows no targeted 
 
            job and no projection as to the likelihood of finding a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            position or pay scale is a position is found after the 
 
            retraining is completed.  
 
            
 
                 Darrel Stephan, at age 48, has been forced by his 
 
            injury to retrain in order to be able to re-enter the work 
 
            force and be gainfully employed.  His entire work history 
 
            has involved the types of activities which his legs do not 
 
            now permit him to perform.  It is determined that Darrel 
 
            Stephan has experienced a 60 percent reduction in his 
 
            earning capacity as a result of the condition of his knees.  
 
            
 
                 The record of this case contains several ratings of 
 
            permanent impairment.  Dr. Wirtz on May 8, 1991, assigned a 
 
            15 percent impairment rating to claimant's left lower 
 
            extremity.  Seven days later, on May 15, 1991, he changed 
 
            that rating to 10 percent.  (ex. B, p. 55; ex. E, pp. 
 
            113-114)  Dr. Grant has rated the right leg as having a 20 
 
            percent permanent impairment.  (ex. E, p. 64; ex. 2-2)  
 
            Claimant's physical impairment has also been evaluated by 
 
            Steven Karber, M.D.  Dr. Karber found claimant to have a 36 
 
            percent impairment of his left leg and a 10 percent 
 
            impairment of the right leg.  (ex. E, p. 44)
 
            
 
                 This case contains a wide diversity in impairment 
 
            ratings.  It should be noted that Dr. Dubansky stated that 
 
            claimant's right knee joint was bone-to-bone and that the 
 
            left had only one millimeter of joint space.  (ex. E, p. 
 
            120).  Under the AMA Guides the absence of any joint space 
 
            provides a 20 percent impairment.  One millimeter of joint 
 
            space provides a 15 percent impairment.  (4th ed. p. 83 
 
            table 62).  It should also be noted that under the Guides, 
 
            4th ed., the simple performance of a tibial osteotomy 
 
            warrants a 25 percent impairment of the lower extremity if 
 
            the result is good.  (table. 64, p. 85)  The result in this 
 
            case would be considered to be fair at best.  (It should be 
 
            noted that the 4th ed. of the AMA Guides appears to be much 
 
            more generous in impairment ratings than the earlier 
 
            editions.)  It appears that Dr. Wirtz did not follow the 
 
            third edition revised of the Guides, however, since 100 
 
            degrees of retained motion warrants an 18 percent impairment 
 
            rating.  Ninety degrees of retained motion of the knee 
 
            warrants a 21 percent impairment rating (Guides, 3rd ed. 
 
            revised, table 39, p. 68).  The third edition also provides 
 
            for 20 percent impairment based upon arthritis according to 
 
            the extent of the deformity.  (table 40, p. 68).
 
            
 
                 It is also noted that claimant was diagnosed with 
 
            arthritis prior to the occurrence of the November 8, 1989 
 
            injury.  No rating appears from Dr. Grant earlier in 1989 
 
            though when he rated the right knee in 1992 he assigned a 20 
 
            percent impairment.  This is consistent with the findings 
 
            made by Dr. Dubansky.  Arthritis is progressive.  It is 
 
            found that at the time of the injury on November 8, 1989, 
 
            Darrel Stephan had a 10 percent preexisting impairment of 
 
            his right leg as a result of degenerative arthritis.  It is 
 
            also found that he had a comparable 10 percent impairment of 
 
            his left leg at the time it was injured on November 8, 1989.  
 
            This finding is made without direct express medical evidence 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            but is based upon the well documented findings from the 
 
            arthroscopic surgeries performed by Dr. Grant.  It is 
 
            further found that at the current time Darrel Stephan has a 
 
            25 percent impairment of his left leg.  It is determined 
 
            that 10 percent preexisted and 15 percent of the left leg 
 
            impairment resulted from the injury of November 8, 1899.  
 
            The determination of a 25 percent impairment of the right 
 
            leg is made applying the findings of Doctors Karber and 
 
            Wirtz to the AMA Guides.  Dr. Wirtz clearly did not follow 
 
            the third edition, revised, the edition that was in effect 
 
            at the time the evaluation was conducted.  The combined 
 
            value of the arthritis and loss of range of motion provides 
 
            a 26 percent impairment.  The loss of range of motion by 
 
            itself provides an 18 percent impairment.  (Guides, 3d ed, 
 
            table 39, p. 68).  The rating made by Dr. Wirtz is 
 
            irreconcilable with the Guides unless he also apportioned 
 
            out the preexisting 10 percent arthritic component.  If he 
 
            did so, without expressly stating that he had done so, then 
 
            his rating is consistent with the Guides.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It is therefore concluded that in file numbers 1013369 
 
            and 1013370 that Darrel Stephan should not receive a 
 
            separate recovery as those alleged injuries are actually 
 
            sequela of the original injury which is now also under 
 
            consideration.  The original injury of November 8, 1989, is 
 
            the principle and primary cause of the events which are 
 
            alleged as separate, subsequent injuries.  Since the parties 
 
            are the same, the better practice is to treat this case as 
 
            one injury, the one of November 8, 1989, although it would 
 
            not necessarily be incorrect to treat the alleged injury of 
 
            February 15, 1991, as a separate cumulative trauma injury 
 
            which produced a period of temporary disability.  In view of 
 
            the facts and circumstances of this case, the better course 
 
            is to treat it all as but one injury.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Claimant seeks additional healing period compensation 
 
            and it is determination that he is entitled to receive it in 
 
            accordance with the care provided to him by Dr. Makowsky.  
 
            The additional healing period starts on February 18, 1991, 
 
            when Dr. Makowsky certified that he should be off work, and 
 
            runs through April 11, 1991, when Dr. Makowsky ceased making 
 
            efforts to further the recuperative process.  The additional 
 
            entitlement amounts to 7 4/7 weeks.  The additional healing 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            period compensation is payable commencing February 18, 1991, 
 
            at the stipulated rate of $254.70.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 The injury of November 8, 1989, was an aggravation of 
 
            the claimant's preexisting arthritic condition in his left 
 
            knee.  While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially 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 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            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. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 When considering all the evidence in the record, it has 
 
            been determined that Darrel Stephan has 25 percent 
 
            impairment of his left leg, of which 10 percent preexisted 
 
            this injury and 15 percent was proximately caused by this 
 
            injury.  It should be noted that no physician has expressed 
 
            an opinion which indicates that the claimant did not have 
 
            any preexisting disability in his knees prior to November 8, 
 
            1989.  It is therefore appropriate to make a determination 
 
            based upon agency expertise.  Crawford v. Tama Meat Packing 
 
            Corp., file number 803960 (App. Dec. August 16, 1989); Shank 
 
            v. Mercy Hospital Medical Center, file number 719627 (App. 
 
            Dec. September 27, 1991).  The record does not show that the 
 
            preexisting disability is Darrel's left leg was proximately 
 
            caused by his employment with the Department of 
 
            Transportation.  Accordingly, apportionment is proper.  
 
            Tussing v. Geo. Hormel and Co., 461 N.W.2d 450 (Iowa 
 
            1990).
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 It has been found that Darrel Stephan had a 10 percent 
 
            permanent partial disability of his right leg prior to the 
 
            time of the November 8, 1989 injury.  Accordingly, that 
 
            disability creates the basis for Second Injury Fund 
 
            liability.  The fact that his left leg had some previous 
 
            impairment and disability does not constitute a defense 
 
            since the amount of disability of the left leg has increased 
 
            appreciably as a result of the November 8, 1989 injury.  In 
 
            order to compute the liability of the Second Injury Fund it 
 
            is necessary to perform as assessment of industrial 
 
            disability.  
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Darrel's capacity for retraining is a factor to be 
 
            considered.  It is probable that he will be able to be 
 
            successfully retrained if he makes a conscientious effort.  
 
            As previously indicated, however, there is not sufficient 
 
            information in the record to make any statement within a 
 
            reasonable degree of probability as to what the impact of 
 
            the retraining will actually produce.  It is therefore 
 
            determined that Darrel has a 60 percent permanent partial 
 
            industrial disability.  If he were not retrainable he would 
 
            likely be totally disabled.
 
            
 
                 A 60 percent permanent partial disability creates an 
 
            entitlement to 300 weeks of compensation.  Under the Second 
 
            Injury Fund formula the employer's liability is to be 
 
            deducted, namely 33 weeks.  An additional 22 weeks is to be 
 
            deducted based upon the preexisting disability in the right 
 
            leg.  The industrial commissioner has ruled that it is 
 
            appropriate to deduct for only one prior scheduled member 
 
            loss even if there are more than one.  Patton v. Roberts 
 
            Dairy Company, file numbers 890255 943984 (App. Dec. May 27, 
 
            1993).  Accordingly, no reduction of the Fund's liability 
 
            can be made for the preexisting disability in claimant's 
 
            left leg.  The liability of the Second Injury Fund is 
 
            therefore 245 weeks.  
 
            
 
                 The claimant's entitlement to recover permanent partial 
 
            disability from the employer commences January 7, 1991.  It 
 
            runs through February 17, 1991, a span of 4 4/7 weeks.  The 
 
            payment of permanent partial disability compensation is then 
 
            interrupted by an additional 7 4/7 weeks of healing period 
 
            compensation running from February 18, 1991 through April 
 
            11, 1991.  The remaining 28 3/7 weeks of permanent partial 
 
            disability compensation payable by the employer is then 
 
            payable commencing April 12, 1991.  The 245 weeks of 
 
            permanent partial disability payable by the Second Injury 
 
            Fund are therefore payable commencing October 28, 1991.  
 
            Although is it not clearly specified in the record it 
 
            appears as though the State of Iowa has in fact paid Darrel 
 
            Stephan 33 weeks of compensation for permanent partial 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disability and its only remaining obligation to him is the 
 
            additional 7 4/7 weeks of healing period awarded by this 
 
            decision.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED  that the State of Iowa and 
 
            Department of Transportation pay to Darrel Stephan seven and 
 
            four-sevenths (7 4/7) weeks of compensation for healing 
 
            period at the stipulated rate of two hundred fifty-four and 
 
            70/100 dollars ($254.70) per week payable commencing 
 
            February 18, 1991.  The entire amount thereof is past due 
 
            and shall be paid forthwith in a lump sum together with 
 
            interest pursuant to section 85.30.
 
            
 
                 It is further ordered that the Second Injury Fund of 
 
            Iowa pay Darrel Stephan two hundred forty-five (245) weeks 
 
            of compensation for permanent partial disability at the rate 
 
            of two hundred fifty-four and 70/100 dollars ($254.70), 
 
            payable commencing October 28, 1991.  The accrued amount 
 
            thereof shall be paid in a lump sum forthwith.  Interest 
 
            shall accrue from the date of this decision.  
 
            
 
                 It is further ordered that the recoveries heretofore 
 
            ordered are payable under file number 943141 on account of 
 
            the November 8, 1989 injury.  Claimant is not entitled to 
 
            any additional recover in file numbers 1013369 or 1013370 
 
            based upon the occurrences of September 13, 1990 and 
 
            February 13, 1991, as those occurrences are all sequela of 
 
            the original injury of November 8, 1989.  
 
            
 
                 It is further ordered that the costs of all three 
 
            action are assessed against defendants jointly and 
 
            severally.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Stephen Lombardi
 
            Attorney at Law
 
            10101 University Ave STE 202
 
            Des Moines, Iowa  50325
 
            
 
            Ms. Iris Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            PO Box 10434
 
            Des Moines, Iowa  50306
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Ms. Shirley Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                   1702 1806 3202 2206 2207 2209 2901
 
                                   Filed January 4, 1993
 
                                   Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DARREL STEPHAN,                   File Nos. 943141
 
                                                       1013369
 
                 Claimant,                             1013370
 
                      
 
            vs.       
 
                           
 
            STATE OF IOWA, 
 
                                            A R B I T R A T I O N
 
                 Self-Insured,  
 
                 Employer,                     D E C I S I O N
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1702 1806 3202
 
            Claimant who had degenerative changes in his knees prior to 
 
            the injury which is the subject of this case was held 
 
            qualified for Second Injury Fund benefits even though no 
 
            physician provided a rating of impairment or opinion as to 
 
            the extent of impairment that preexisted.  It was evident 
 
            from surgical findings that some permanent disability had 
 
            preexisted.  Based upon the extent of arthritic changes 
 
            which were shown from evidence in the record a 10 percent 
 
            permanent impairment of each leg was found to preexist the 
 
            injury in this case.  The Second Injury Fund entitlement was 
 
            determination accordingly.  
 
            
 
            2206 2207 2209 2901
 
            Claimant brought three claims but there was one injury.  His 
 
            claim of injury based upon a pulmonary embolism which 
 
            developed as a result of the surgery was held to be sequela 
 
            of the original injury and not a separate injury.  An 
 
            unsuccessful attempt to resume employment aggravated the 
 
            claimant's condition.  That was held to be sequela of the 
 
            original injury although it could have properly been 
 
            characterized as a separate aggravation type of injury.  The 
 
            original injury was held to be the principle cause and 
 
            therefore the entire case was decided under that original 
 
            date of injury.