BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BARRY KING,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 943625
 
            JOHN MORRELL & COMPANY,  
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE 
 
            INSURANCE COMPANY,            
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant Barry King against his employer, John Morrell & 
 
            Company, and its insurance carrier, National Union Fire 
 
            Insurance Company.  Mr. King asserts that he sustained 
 
            injury arising out of and in the course of employment when 
 
            he was struck by a falling hog carcass on May 12, 1989.  
 
            
 
                 A hearing was scheduled in Cedar Rapids on May 19, 
 
            1993.  Claimant, proceeding Pro Se, failed to appear.  
 
            Defendants elected to present no evidence.  Fifteen minutes 
 
            after the scheduled time for hearing, defendants and the 
 
            court reporter were released.  
 
            
 
                                      ISSUES
 
            
 
                 Because claimant failed to cooperate with defendants as 
 
            ordered by the hearing assignment order filed March 11, 
 
            1993, no hearing report was present.  Accordingly, issues 
 
            presented include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of employment;
 
            
 
                 2.  Whether the injury caused temporary or permanent 
 
            disability;
 
            
 
                 3.  The extent of temporary and permanent disability; 
 
            and
 
            
 
                 4.  Entitlement to medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 No evidence was received.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 Since the record contains no evidence whatsoever, it is 
 
            held that claimant has failed to meet his burden of proof in 
 
            establishing either that he sustained injury arising out of 
 
            and in the course of employment, or that the injury caused 
 
            disability or need for medical treatment.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to claimant.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Barry King
 
            1901 Allen Street
 
            Sioux city, IA  51103
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1402.20
 
                                                Filed June 1, 1993
 
                                                David R. Rasey
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BARRY KING,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 943625
 
            JOHN MORRELL & COMPANY,  
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE 
 
            INSURANCE COMPANY,            
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.20
 
            Pro Se claimant, who failed to appear for hearing, failed to 
 
            prove that he sustained a compensable injury.  
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LODEMA KIRKPATRICK,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 943687
 
            SEARS, ROEBUCK & COMPANY,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            ALLSTATE INSURANCE,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 7, 1993 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            When all relevant factors are considered, claimant has 
 
            suffered a 25 percent industrial disability as a result of 
 
            her work injury on February 7, 1990.  Those relevant factors 
 
            include, claimant's age; her work experience; her education; 
 
            her 18 percent functional impairment; lack of restrictions 
 
            placed on her activities by medical providers; the diagnosis 
 
            of adjustment disorder and/or depression; the diagnosis of 
 
            chronic pain syndrome attributable to her work injury; her 
 
            questionable motivation to return to suitable employment; 
 
            her ability to work as a sales position; the defendant 
 
            employer's willingness to return claimant to work until the 
 
            store closed; claimant's return to work until the store 
 
            closed on March 30, 1991; the store closing; and claimant's 
 
            mental status attributable to her February 7, 1990 work 
 
            injury.
 
            
 
            It is clear that claimant is not permanently totally 
 
            disabled as a result of her February 7, 1990 work injury.  
 
            She had returned to work for defendant employer following 
 
            her healing period.  The employment ended when the store 
 
            closed.
 
            
 
            Pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33, 
 
            costs are assessed at the discretion of the agency.  Each 
 
            party should bear its own costs for exhibits when those 
 
            exhibits are not well organized and in some cases irrelevant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and unnecessarily voluminous.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.  Each party shall pay 
 
            their own costs for all other costs.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Terrence Denefe
 
            Attorney at Law
 
            P.O. Box 493
 
            Ottumwa, Iowa 52501-0493
 
            
 
            Mr. E. J. Kelly
 
            Ms. Anne L. Clark
 
            Ms. Jane V. Lorentzen
 
            Attorneys at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803; 5-2907
 
                                              Filed March 31, 1994
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LODEMA KIRKPATRICK,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 943687
 
            SEARS, ROEBUCK & COMPANY,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            ALLSTATE INSURANCE,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            When all relevant factors are considered, claimant has 
 
            suffered a 25 percent industrial disability as a result of 
 
            her work injury on February 7, 1990.  Those relevant factors 
 
            include, claimant's age; her work experience; her education; 
 
            her 18 percent functional impairment; lack of restrictions 
 
            placed on her activities by medical providers; the diagnosis 
 
            of adjustment disorder and/or depression; the diagnosis of 
 
            chronic pain syndrome attributable to her work injury; her 
 
            questionable motivation to return to suitable employment; 
 
            her ability to work as a sales position; the defendant 
 
            employer's willingness to return claimant to work until the 
 
            store closed; claimant's return to work until the store 
 
            closed on March 30, 1991; the store closing; and claimant's 
 
            mental status attributable to her February 7, 1990 work 
 
            injury.
 
            
 
            5-2907
 
            Costs are assessed at the discretion of the agency.  Each 
 
            party ordered to pay its own costs when the exhibits were 
 
            not well organized and in some cases irrelevant and 
 
            unnecessarily voluminous.
 
            
 
 
            
 
     
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LODEMA KIRKPATRICK,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 943687
 
            SEARS, ROEBUCK & COMPANY,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Lodema Kirkpatrick, against her former employer, 
 
            Sears, Roebuck & Company, and its insurance company, 
 
            Allstate Insurance Company.  Claimant alleges that she 
 
            sustained a work-related injury on February 7, 1990 and 
 
            seeks workers' compensation benefits.  
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant, Kenneth Kirkpatrick (claimant's husband), Kenetta 
 
            Bottorff (claimant's daughter), Tom Schaffer and David 
 
            Palmer; joint exhibits 1-30 and 33-34; claimant's exhibits 
 
            35-39; and,  defendants' exhibit A.  The case came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on July 29, 1993, at Oskaloosa, Iowa.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            reviewed all of the evidence received, finds the following 
 
            facts:
 
            
 
                 Claimant, Lodema Kirkpatrick, was born on February 25, 
 
            1934.  At the time of the hearing she was 59 years of age.  
 
            She is married to Kenneth Kirkpatrick, and they have four 
 
            adult children.  She has lived in the Ottumwa area since 
 
            1970. 
 
            
 
                 Claimant is a high school graduate, and received 
 
            average grades.  She has not pursued any further formal 
 
            education, although she has attended numerous seminars and 
 
            meetings sponsored by Sears to learn about products and 
 
            selling techniques.  
 
            
 
                 Claimant began working for a produce company in May of 
 
            1952 in Macon, Missouri.  Several months later, she began 
 
            working at a poultry processing factory, but quit when she 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            married in December of 1952.  In 1955, she worked as a 
 
            receptionist for Sears Allstate Insurance in Kirksville, 
 
            Missouri.  She did not perform any typing duties, and left 
 
            in 1956 when she became pregnant.
 
            
 
                 In 1961, claimant returned to work for Sears, Roebuck & 
 
            Company in the Ottumwa store.  For the first five years, she 
 
            worked part-time in the toy department.  In 1965, when the 
 
            retail store closed and the catalog store opened, claimant 
 
            accepted a position as a freight clerk, where her duties 
 
            included unloading and stocking incoming freight, sweeping 
 
            floors and constructing product displays.  
 
            
 
                 In approximately 1966, claimant became a commission 
 
            sales person.  As such, in addition to selling items, she 
 
            was required to lift and move appliances such as 
 
            refrigerators, air compressors, washers and dryers.  She was 
 
            aided by a hand cart on occasion.  She stated that she 
 
            earned approximately $28,000 per year.  Her income (as well 
 
            as her husband's income, information which is completely 
 
            irrelevant to this case) is substantiated by joint exhibits 
 
            24 and 25.  
 
            
 
                 On February 7, 1990, claimant sold a dryer to a 
 
            customer.  She went to the storage area, and was unable to 
 
            secure help in retrieving the merchandise which was stacked 
 
            in boxes.  The particular dryer claimant needed to deliver 
 
            to the customer was located on the top of a washer.  She did 
 
            not want the customer to wait until additional help arrived, 
 
            so she tried to tip the boxed dryer forward, attempting to 
 
            slide it from her back, down her legs, to the floor.  
 
            Apparently, she had succeeded in performing this maneuver in 
 
            the past, but on this occasion, the box underneath the dryer 
 
            was wet and folded, or "gave way," and the boxed dryer fell 
 
            on claimant, hitting her in the right side of the neck and 
 
            shoulder area.  While the merchandise knocked claimant to 
 
            the floor, she "saved the dryer" which came out the winner 
 
            in the incident.  Claimant estimated that the dryer weighed 
 
            between 126 and 130 pounds.  
 
            
 
                 Claimant got up off of the floor, and felt that she had 
 
            pulled a muscle in her neck.  There were no witnesses to the 
 
            actual event, but a coworker came to the warehouse area just 
 
            as claimant was getting on her feet and straightening her 
 
            glasses, which had been knocked off when she fell.  She 
 
            continued to work the remainder of the day, and reported the 
 
            incident to Kathleen Clark, the audit clerk the following 
 
            day, February 8, 1990.  (Ms. Clark was not working on 
 
            February 7, and the manager of the store, Tom Shafer, was on 
 
            vacation.)  Ms. Clark corroborates claimant's testimony via 
 
            a deposition (Jt. Ex. 35). Claimant filled out an incident 
 
            report, which also corroborates her testimony (Jt. Ex. 23, 
 
            p. 22).   
 
            
 
                 Claimant proceeded to see a chiropractor for relief of 
 
            her pain.  While the parties submitted records from Alex 
 
            Macy, D.C., claimant was actually treated by Michael Jacobs, 
 
            D.C.  While most of the records detail treatment given to 
 
            claimant in 1987 and wholly irrelevant to the case at bar, a 
 
            notation for the February 15, 1990 visit indicates that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant felt pain when she attempted to put on her seat 
 
            belt (Jt. Ex. 2, p. 3).  Claimant stated that from the time 
 
            of the accident until she saw the chiropractor she had 
 
            continuous pain, but admitted that an increase in her 
 
            symptoms occurred when she attempted to put on her seat 
 
            belt.  Dr. Macy was deposed for the case, and provided 
 
            testimony about his records (Claimant's Exhibit 36). 
 
            
 
                 Claimant was unhappy with the treatment she received 
 
            from Dr. Jacobs, and tried to return to work.  On February 
 
            17, 1990, she sought treatment from the emergency room at 
 
            the Ottumwa Regional Health Center, and was treated by 
 
            Michael Pogel, M.D., a neurologist.  Results of x-rays and 
 
            an MRI showed that claimant had sustained a herniated disc 
 
            at the C5-6 level with resulting radiculopathy.  Records 
 
            from the emergency room indicate that claimant stated she 
 
            did not remember injuring her neck or shoulder (Jt. Ex. 5).  
 
            Claimant testified that she told the emergency room 
 
            personnel that she was injured while working at Sears.
 
            
 
                 Claimant was referred to Chad Abernathey, M.D., a 
 
            neurosurgeon in Cedar Rapids, Iowa.  The noted history 
 
            includes claimant's description of the accident at Sears.  
 
            An examination revealed that claimant complained of pain in 
 
            the neck and right upper extremity.  She complained of 
 
            extensive numbness, tingling and parathesia from the right 
 
            upper extremity to several fingers on the right hand.  Dr.  
 
            Abernathey agreed that claimant was suffering from C6 
 
            radiculopathy.  He recommended surgery, which was performed 
 
            on March 8, 1990 (Jt. Ex. 9, pp. 1-5; Jt. Ex. 14).  
 
            
 
                 In the following year, claimant received follow-up 
 
            treatment from both Dr. Pogel and Dr. Abernathey.  Although 
 
            for several weeks after the surgery claimant reported a 
 
            complete relief of her pre-operative symptoms, on March 30, 
 
            1990, she presented to Dr. Abernathey with renewed 
 
            complaints of pain in the lower portion of her neck, 
 
            extending into the upper arm and hand.  A neurological 
 
            examination revealed weakness in the triceps and wrist, and 
 
            fingers.  Dr. Abernathey believed that claimant demonstrated 
 
            evidence of a C7 radiculopathy on the right side.  He 
 
            recommended a CT myelograpy, which she underwent on April 2, 
 
            1990.  Claimant underwent a second cervical surgery on April 
 
            3, 1990.  The surgery consisted of a hemilaminectomy on the 
 
            right C6, C-7, and a C6-7 discectomy (Jt. Ex. 8, pp. 1-11; 
 
            Jt. Ex. 9, pp. 6-11; Jt. Ex. 13).  Claimant also underwent 
 
            an orthopedic consultation regarding her right arm, 
 
            performed by Donald Berg, M.D.  He concluded that claimant 
 
            was experiencing nerve root swelling and muscle spasms in 
 
            her back and thoracic area.  He recommended hot packs, 
 
            massages and physical therapy, which was provided at South 
 
            East Iowa Physical Therapy Services in Ottumwa.  Only the 
 
            initial evaluation is provided (Jt. Ex. 10; Jt. Ex. 11, p. 
 
            1).  Also included in this Dr. Berg's notes are records from 
 
            1986 (Jt. Ex. 10).  
 
            
 
                 Claimant was off of work until June 10, 1990.  She 
 
            stated that she missed her job, and encouraged Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Abernathey to allow her to return to work.  While reluctant 
 
            to do so, he released claimant to return to work on a 
 
            limited basis, two hours per day, which increased to five 
 
            hours per day in November of 1990.  Claimant underwent 
 
            additional physical therapy, and the notes reflect 
 
            claimant's continued muscle spasms in the spinal muscles, 
 
            the scalenes, and the sternomastoid muscle.  (Jt. Ex. 11, 
 
            pp. 2-3).
 
            
 
                 Claimant received additional follow-up treatment with 
 
            Dr. Pogel, who uncovered marked dysesthetic sensation to pin 
 
            and touch in the distribution of the posterior cervical 
 
            roots.  From November 1990 through March 1992, he continued 
 
            to treat her with medications, and finally diagnosed chronic 
 
            pain syndrome and recommended a pain clinic (Jt. Ex. 8, pp. 
 
            11-20).
 
            
 
                 Claimant continued to see Dr. Abernathey, and continued 
 
            to report pain and difficulties with her neck.  He 
 
            considered a C5-6 fusion, but conservative treatment was 
 
            chosen. In August, claimant reported a "dramatic improvement 
 
            in her neck pain, right upper extremity pain."  While 
 
            portions of Dr. Abernathey's records indicate claimant was 
 
            released on an as-needed basis, there are also notations 
 
            that state she was still in a healing period.  She was 
 
            diagnosed with chronic pain syndrome, and was continuing 
 
            treatment with Dr. Pogel for her depression and anxiety (Jt. 
 
            Ex. 8, pp. 1-10).  On January 28, 1991, Dr. Abernathey 
 
            opined that based on examinations and history, claimant had 
 
            sustained an 18 percent permanent impairment to her body as 
 
            a whole.  In June of 1991, he believed that claimant's 
 
            activities were limited by pain, which he agreed was a 
 
            subjective complaint.  He also indicated that objective test 
 
            results were normal (Jt. Ex. 9, pp. 7-23).  Dr. Abernathey's 
 
            records and notations were substantiated by his deposition 
 
            testimony.  Of particular note is his testimony on page 21, 
 
            lines 16-25:
 
            
 
                 No one can actually test or have a painometer to 
 
                 assess pain status.  In her case that was her 
 
                 primary problem, was specifically the complaint of 
 
                 pain.  My feeling was that she could perform any 
 
                 tasks according to her own personal pain 
 
                 tolerance, what she felt she could accomplish.  I 
 
                 didn't see any contraindication to performing 
 
                 usual daily activities, if she could tolerate the 
 
                 pain that they incurred.
 
            
 
            (Cl. Ex. 37)
 
            
 
                 In April of 1991, claimant underwent a functional 
 
            capacities evaluation at Mercy Hospital Medical Center, Des 
 
            Moines, Iowa.  The report reveals that claimant had 
 
            performed poorly on the tests administered during the 
 
            evaluation.  Gripping strength of the right hand were below 
 
            the 10th percentile for females in the claimant's age group.  
 
            Static arm strength tests resulted in inferior performances, 
 
            below the 5th percentile on norms for healthy industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            females.  Claimant stopped the tests due to throbbing and 
 
            shooting pain in the right side of her neck which she rated 
 
            a 10 on an ascending scale of pain of 0 to 10.  At one 
 
            point, she reported a 12 level of pain, stemming from 
 
            household activities.  Only a limited number of assessments 
 
            were able to be completed.  The evaluator believed there was 
 
            a "serious question of symptom magnification tendencies on 
 
            the [claimant's] part."  (Jt. Ex. 12).  
 
            
 
                 Joint exhibit 15 contains records from Ronald Berges, 
 
            D.O.  Included are health insurance claim forms; signed 
 
            authorizations for release of information; notations 
 
            concerning what copies of information were sent to which 
 
            attorneys; prescriptions; claimant's attorney's letters to 
 
            the doctor; a request for a report from the Disability 
 
            Determination Services Bureau; and other information which 
 
            is wholly irrelevant to the claim.  A select few of the 
 
            records contain relevant information.  Claimant's chief 
 
            complaint when she visited Dr. Berges in August of 1991 was 
 
            that of chronic pain.  A mental status examination found 
 
            that claimant reported she did not sleep well without the 
 
            assistance of valium; she was nervous; she felt frustrated 
 
            because of an inability to perform activities without 
 
            significant pain; and guilt.  Dr. Berges diagnosed chronic 
 
            pain syndrome; adjustment disorder with anxious mood; 
 
            cervical neuralgia; and a previous cervical discectomy.  For 
 
            the next two years, claimant visited Dr. Berges on a monthly 
 
            basis, his diagnosis stayed essentially the same, although 
 
            in October of 1992 he diagnosed major depression, and he 
 
            repeatedly encouraged her to apply for "some type of 
 
            disability."  He also prescribed various types of 
 
            medications to control her adjustment disorder and pain.  
 
            Dr. Berges was asked many times for his opinion regarding 
 
            the causal connection between claimant's injury and her 
 
            current condition.  Each time, his opinion, within a 
 
            reasonable degree of medical certainty, was that claimant's 
 
            injury on February 7, 1990 caused her current condition (Jt. 
 
            Ex. 15, pp. 1-46).  In April of 1993, Dr. Berges was asked 
 
            to use the Guides to the Evaluation of Permanent Impairment, 
 
            Third Edition, 1988, to determine claimant's impairment.  
 
            His assessment included both objective and subjective 
 
            information, and he believed "[h]er depressive symptoms have 
 
            continued, and in fact, increased due to her ongoing chronic 
 
            pain."  (Jt. Ex. 15, p. 47)
 
            
 
                 Dr. Berges was also asked to review a report from 
 
            Michael Taylor, M.D., a psychiatrist located in Des Moines, 
 
            Iowa; Thomas Carlstrom, M.D., a neurosurgeon, located in Des 
 
            Moines, Iowa and several surveillance tapes.  He did not 
 
            believe that the activities shown on the surveillance tapes 
 
            discredited claimant in any way.  The final report from Dr. 
 
            Berges is dated May 26, 1993.  He continued to diagnose 
 
            major depression, single episode; anxiety disorder; and, 
 
            chronic pain syndrome related to previous cervical disk 
 
            injury.  (Jt. Ex. 15, pp. 48-54.5).  Dr. Berges confirmed 
 
            these thoughts in his deposition (Cl. Ex. 38).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was evaluated by Dr. Carlstrom on November 24, 
 
            1992.  He attempted to exam her, but she would not move her 
 
            neck, nor would she let him move her neck.  While he 
 
            believed she was experiencing myofascial symptoms in her 
 
            neck, he stated that "[t]here is no doubt in my mind that 
 
            she is over-reacting considerably" and believed it would be 
 
            difficult to return her to work because of low motivation 
 
            levels.  He observed that claimant was able to ride in a car 
 
            for the round trip from Ottumwa to Des Moines in one day.  
 
            While he had nothing to offer surgically, he offered that a 
 
            pain clinic or job "rehab" situation for light duty work 
 
            "might" be successful (Jt. Ex. 18).  
 
            
 
                 Also, in November of 1992, claimant underwent a "Mental 
 
            Residual Functional Capacity Assessment" performed by Carole 
 
            Davis Kazrueski.  Apparently, Ms. Kazrueski (who the 
 
            undersigned believes is a psychologist but the record is 
 
            unclear on this point) determined that claimant's symptoms 
 
            of depression and anxiety were mild.  She believed claimant 
 
            was preoccupied with her physical condition, thereby causing 
 
            a "lessened ability to concentrate [and] tend to the task at 
 
            hand."  (Jt. Ex. 21, p. 3)
 
            
 
                 Claimant received second and third opinions addressing 
 
            her mental state from Michael Taylor, M.D., and Garry 
 
            Teigland, D.O.  Dr. Taylor provided two reports.  The first, 
 
            dated January 21, 1993, details Dr. Taylor's interview with 
 
            claimant and confirms that he reviewed her medical history.  
 
            He agreed with Dr. Berges' course of treatment and 
 
            diagnosis.  He believed her major depressive disorder to be 
 
            minimally symptomatic, but "directly causally related to the 
 
            injury suffered in the course of her employment at Sears, 
 
            Roebuck and Company."  (Jt. Ex. 20, pp. 1-2)  Then, he 
 
            reviewed surveillance tapes, which show claimant walking 
 
            with her right arm next to her side.  The tapes also show 
 
            claimant turning around to the back seat of a car to 
 
            retrieve something and also show claimant closing a door 
 
            with her right arm, and in a subsequent report dated April 
 
            5, 1993, recanted his earlier opinion.  In short, he did not 
 
            believe claimant's complaints of pain, and was unsure 
 
            whether she suffered from a major depressive disorder (Jt. 
 
            Ex. 20, pp. 1-4).  Dr. Taylor confirmed his report in a 
 
            deposition (Defendants' Exhibit C).  
 
            
 
                 Dr. Teigland's report, dated January 4, 1993, confirms 
 
            that after reviewing records from Dr. Berges, he agreed with 
 
            the diagnosis of major depression and believed that claimant 
 
            experienced severe muscle spasms.  He recommended different 
 
            medications on a trial basis.  Dr. Teigland is Dr. Pogel's 
 
            associate (Jt. Ex. 19).
 
            
 
                 Two surveillance tapes, along with a deposition of the 
 
            investigator who shot the tapes and reports describing the 
 
            tapes have been entered into evidence as joint exhibits 33 
 
            and 34, and defendants' exhibits A, B and D.  The tapes 
 
            indeed show claimant walking, turning around in a car, 
 
            closing a car door with her right arm, and carrying objects 
 
            that cannot possibly weigh more than five to ten pounds.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Reports from several investigators associated with the case 
 
            indicate that they followed the claimant while she was 
 
            shopping, and observed her lifting her right arm above her 
 
            head, looking up and turning her neck from side to side.  
 
            
 
                 The undersigned reviewed all of the evidence received, 
 
            including joint exhibits 4, 7, 16, 17, 22, 24, and 26-30, 
 
            even though there are no specific references to these 
 
            exhibits.  Most of the information was irrelevant or 
 
            duplicative in nature.
 
            
 
                 It should be noted that claimant has had a prior 
 
            episode of treatment for an anxiety attack in 1970 (Jt. Exs. 
 
            1 and 3).  She went through a course of treatment at the 
 
            University of Iowa pain clinic in 1982 (Jt. Ex. 6).  And, 
 
            she passed her pre-employment physical for Sears, conducted 
 
            in 1970 (Jt. Ex. 7).  
 
            
 
                 Additionally, it is noted that claimant continued 
 
            working for Sears once she was released to return to work 
 
            until March 30, 1991, when the store closed.  She admitted 
 
            the store closing caused anxiety and a sense of loss.  
 
            
 
                 Subsequent employment has not worked out for claimant.  
 
            For several days, she worked in a grocery store passing out 
 
            coffee and doughnuts.  She was unable to sit to do this job, 
 
            and was unable to perform the required duties.  She also 
 
            worked for KLEE Radio for one week in the advertising sales 
 
            department.  Her duties included visiting various merchants 
 
            to sell air-time for their advertisements.  She stated she 
 
            was unable to perform the job.  Additionally, she worked 
 
            briefly as a school teacher's aide.  She felt this position 
 
            was inappropriate because she was unable to lift physically 
 
            challenged children.  
 
            
 
                 Claimant also tried to return to the Sears store, which 
 
            had been sold to a private individual.  She had similar 
 
            duties, but did not have to unbox various appliances sold.  
 
            She worked for five weeks, and was unable to continue due to 
 
            the pressure, anxiety and a perception that she was not 
 
            doing a good job.  
 
            
 
                 Claimant has also suffered other physical problems, 
 
            including a broken jaw in 1991.  She also underwent 
 
            unnecessary surgery in 1982.  
 
            
 
                 Additional testimony came from David Palmer, a former 
 
            coworker of claimant's.  He offered that claimant was a very 
 
            good salesperson, and is an honest person.  He surmised that 
 
            once claimant returned to work, she was a completely 
 
            different person, and left work often due to pain.  Tom 
 
            Shafer, the former store manager, confirmed that claimant 
 
            was a good salesperson and employee.  He does not dispute 
 
            that she was injured at work.  He stated that claimant would 
 
            always try to give 120 percent to her job.  Claimant's 
 
            husband, Kenneth and daughter, Kenetta, also testified at 
 
            the hearing.  Both stated that claimant was unable to 
 
            perform many duties around the house.  Both testified that 
 
            they believed claimant was in pain most of the time. 
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 
            sustained an injury on February 7, 1990 which arose out of 
 
            and in the course of her employment.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant was performing her regular job duties as a 
 
            commission salesperson on February 7, 1990.  When claimant 
 
            sold various merchandise, she would help secure it from the 
 
            warehouse.   At times, this involved lifting, or helping to 
 
            lift the merchandise.  
 
            
 
                 Claimant reported the accident one day after it 
 
            happened. Her testimony is consistent with the documentary 
 
            evidence received at the hearing.  While one medical record 
 
            suggests that claimant did not remember injuring her neck, 
 
            and felt sudden pain when securing her seat belt while 
 
            preparing to drive her car, the other evidence in the case 
 
            shows by a preponderance of the evidence that when she 
 
            attempted to slide a boxed dryer from a stack, it slipped 
 
            and hit her on the right side of the neck and shoulder area.
 
            
 
                 As a result, it is found that claimant sustained an 
 
            injury on February 7, 1990, which arose out of and in the 
 
            course of her employment.  
 
            
 
                 The next issue to address is whether claimant sustained 
 
            a temporary total or permanent disability, and whether there 
 
            is a causal connection between the injury and claimant's 
 
            disability. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 Dr. Abernathey provided primary treatment to claimant 
 
            for the neck injury.  He performed two surgeries, and was 
 
            involved in claimant's treatment for almost one year.  In 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            his deposition, he stated that he was of the opinion that 
 
            there was a causal relationship between the functional 
 
            impairment and the employment-related events.  The 18 
 
            percent impairment rating was based on loss of range of 
 
            motion and pain related to motion, movement, bending, 
 
            twisting and lifting.  
 
            
 
                 The record contains no evidence to the contrary.  
 
            Claimant has shown by a preponderance of the evidence that 
 
            there is a causal connection between the injury and 
 
            claimant's permanent disability.  
 
            
 
                 The next issue to resolve is whether claimant is 
 
            entitled to permanent partial disability benefits.  As she 
 
            has sustained an injury to the body as a whole, an analysis 
 
            of her industrial disability is warranted. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 56 years of 
 
            age.  She is a high school graduate, with additional 
 
            training in the area of sales and Sears product information.  
 
            
 
                 For most of her working life, claimant has been a 
 
            commission salesperson for Sears.  The evidence shows that 
 
            claimant was a very good, productive salesperson, and 
 
            enjoyed the competitiveness and challenges presented by 
 
            selling.  Claimant took pride in her work.    
 
            
 
                 Claimant's work injury caused major changes in her 
 
            ability to perform her job duties on a regular basis.  After 
 
            she was released to return to work, she was able to work 
 
            only five hours per week.  Claimant's job with Sears ended 
 
            when the store closed in March of 1991.  
 
            
 
                 Claimant has endured a long, painful healing period.  
 
            She has undergone two surgeries, numerous modalities of 
 
            physical therapy and conservative treatment and psychiatric 
 
            treatment.  She has been diagnosed with chronic pain 
 
            syndrome, as well as an adjustment disorder, or a single 
 
            episode of depression.  The undersigned believes that part 
 
            of claimant's mental state stems from the actual closing of 
 
            the Sears store, and the sense of loss claimant felt, 
 
            perhaps not due to the decrease in her earnings, but a loss 
 
            of her sense of identity.   She had worked for the store for 
 
            30 years, and it would seem natural to experience some 
 
            feelings of sadness.
 
            
 
                 A troubling aspect of claimant's case is the report 
 
            written after claimant's functional capacities evaluation.  
 
            It reflects poorly on claimant's motivation, effort and 
 
            veracity. 
 
            
 
                 Attempts by claimant to return to suitable work have 
 
            been disastrous, and short-lived.  This, too, is troubling 
 
            to the undersigned.  No physician placed any restrictions on 
 
            claimant's ability to perform any activities.  Dr. 
 
            Abernathey's opinion that claimant should refrain from 
 
            performing activities that cause her pain is insufficient to 
 
            find that she has any activity or work restrictions.  While 
 
            claimant testified that she was under a permanent 
 
            restriction of no lifting greater than 25 pounds, the 
 
            undersigned is unable to locate this restriction in the 
 
            medical evidence.  In any event, all of the jobs claimant 
 
            held after the injury did not demand that she lift more than 
 
            25 pounds.  The advertising sales position with KLEE radio 
 
            station seems an appropriate position for claimant, but she 
 
            stated that she was unable to handle the job due to the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            physical demands, yet the undersigned is unable to identify 
 
            what physical limitations claimant has in addition to the 18 
 
            percent impairment to the neck.  Pounding the pavement 
 
            looking for potential customers to sell products to is not 
 
            an easy job, but the record does not support a finding that 
 
            claimant is unable to walk, talk, write, open doors, or 
 
            perform other activities associated with calling on existing 
 
            and potential customers.  Likewise, claimant was unable to 
 
            pass out various products at grocery stores.  Cookies and 
 
            beverages do not weigh a great deal, and while claimant 
 
            stated that she was unable to sit during this type of work, 
 
            again, there is not restriction on her ability to stand.  
 
            The undersigned is not certain that the job required 
 
            claimant to stand for eight hours per day.  
 
            
 
                 A chronic pain syndrome diagnosis has been a difficult 
 
            physical malady to contend with and understand, because the 
 
            complaints are purely subjective.  Even Dr. Abernathey 
 
            admitted that there were no objective findings to support 
 
            claimant's complaints of constant pain.  
 
            
 
                 And, although Dr. Berges has repeatedly stated that 
 
            claimant's current mental state was caused by the injury 
 
            sustained at work on February 7, 1990, her mental status is 
 
            but one component of the multitude of factors that make up 
 
            an industrial disability.  This is not a case that involves 
 
            a mental injury caused by work.   
 
            
 
                 After considering all of the factors that constitute an 
 
            industrial disability, including claimant's age; her 18 
 
            percent permanent impairment rating; the diagnoses of 
 
            adjustment disorder and/or depression; her questionable 
 
            motivation to return to suitable employment; claimant's 
 
            ability to work at a sales position; the defendant 
 
            employer's willingness to return claimant to work until the 
 
            store closed; the actual store closing; and, claimant's 
 
            mental status, it is found that she has sustained a 25 
 
            percent loss of earning capacity. 
 
            
 
                                      ORDER
 
            
 
                 WHEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling one hundred twenty-five (125) 
 
            weeks at the rate of three hundred fifty-two and 56/100 
 
            dollars ($352.56) per week beginning January 28, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set for forth in Iowa Code section 85.30.
 
            
 
                 That due to the condition of the exhibits, each party 
 
            shall pay their respective costs in pursuing or defending 
 
            this claim.
 
            
 
                 That defendants shall file an activity report upon 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            payment of this award as requested by the agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr J Terrence Denefe
 
            Attorney at Law
 
            104 S Court St
 
            Ottumwa IA 52501
 
            
 
            Mr E J Kelly
 
            Ms Anne L Clark
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed September 7, 1993
 
                                            Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LODEMA KIRKPATRICK,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 943687
 
            SEARS, ROEBUCK & COMPANY,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            After considering all of the factors that constitute an 
 
            industrial disability, including claimant's age; her 18 
 
            percent permanent impairment rating; the diagnoses of 
 
            adjustment disorder and/or depression; her questionable 
 
            motivation to return to suitable employment; claimant's 
 
            ability to work at a sales position; the defendant 
 
            employer's willingness to return claimant to work until the 
 
            store closed; the actual store closing; and, claimant's 
 
            mental status, it is found that she has sustained a 25 
 
            percent loss of earning capacity.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RADA CAMPBELL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 943879
 
            KIMBERLY QUALITY CARE,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GALLAGHER BASSETT,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed December 23, 1991, is affirmed and is adopted 
 
            as the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 The line of industry the claimant works in is medical 
 
            pools providing certified nurse's aides.  Claimant testified 
 
            that she was not working exclusively for the defendant 
 
            employer (Transcript, pages 41-42).  This fact was 
 
            acknowledged by defendant employer (Tr., pp. 5l-53).  
 
            Defendant employer's witness, Jane Phillips, testified that 
 
            "most of our people worked for us exclusively."  (Tr., p. 
 
            53, lines 14-15)  Claimant worked for three different 
 
            agencies and gave her general impressions about the 
 
            employment relationships with those agencies.  Both claimant 
 
            and Phillips testified that claimant turned down work at 
 
            times when work was offered by defendant employer.  There is 
 
            sufficient evidence in the record to make a finding that 
 
            claimant's earnings with defendant employer were less than 
 
            the usual weekly earnings of someone working in a medical 
 
            pool for certified nurse's aides.  Claimant did not work 
 
            exclusively for defendant employer and at times turned down 
 
            work.  Defendant employer's Exhibit B (referred to at the 
 
            hearing as Exhibit 2) is not sufficient to rebut evidence of 
 
            this finding.  Exhibit B lists a number of employees.  Only 
 
            11 of them (Bayless, Breeze, Broughton, claimant, Cherry, 
 
            Duane, Fister, Hall, Kriegel, Perky and Roop) received 
 
            payment each week during the period November 3, 1989 through 
 
            February 2, 1990.  Some received more than claimant (two) 
 
            and some (eight) received less than claimant.  It is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            impossible to tell from this exhibit what someone who was 
 
            regularly employed would earn if they were working full 
 
            time.  In this analysis someone working full time would be 
 
            someone who worked every week during this 13 week period and 
 
            who worked 30 more hours in a week.  It is also worth noting 
 
            that during this 13 week period claimant only worked 30 or 
 
            more hours for six weeks.
 
            
 
                 Defendant employer shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, Iowa  50265
 
            
 
            Mr. Stephen W. Spencer
 
            Mr. Lee P. Hook
 
            Attorneys at Law
 
            Suite 300, Fleming Building
 
            P O Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3000
 
            Filed April 30, 1992
 
            BYRON K. ORTON
 
            PJL
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RADA CAMPBELL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 943879
 
            KIMBERLY QUALITY CARE,        :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GALLAGHER BASSETT,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            3000
 
            Claimant worked as a certified nurse's aide for three 
 
            medical personnel pools.  She would work between 8 and 89 
 
            hours per week and was free to accept or reject any 
 
            assignment offered to her.
 
            She was injured in February 1989.  During the 12 months 
 
            preceding the accident, claimant worked only six months.
 
            The only issue presented was under which code section should 
 
            claimant's rate be calculated.
 
            Claimant determined to be a part-time employee and rate 
 
            calculated under Iowa Code section 85.36(10).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RADA CAMPBELL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 943879
 
            KIMBERLY QUALITY CARE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GALLAGHER BASSETT,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Rada Campbell, against the employer, Kimberly 
 
            Quality Care.  The hearing was held on November 7, 1991, at 
 
            Des Moines, Iowa.  The parties stipulated that on February 
 
            5, 1990, claimant received an injury which arose out of and 
 
            in the course of her employment.  The sole issue to be 
 
            determined is claimant's workers' compensation rate.
 
            
 
                 The evidence in this case consists of testimony from 
 
            the claimant, Rada Campbell, and the payroll/bill 
 
            coordinator, Jane Phillips; claimant's exhibits 1 through 5; 
 
            and, employer's exhibits A through D.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 In 1963, claimant graduated from high school in 
 
            Yugoslavia.  She has taken several nursing assistant 
 
            courses.
 
            
 
                 In 1975, claimant moved to the United States and is 
 
            presently residing in Des Moines, Iowa.
 
            
 
                 Since 1975, claimant has held a variety of jobs, 
 
            including working as a sales clerk, a waitress, assistant 
 
            manager of an apartment complex, a hostess, and an assistant 
 
            manager of a restaurant.  Since moving to the United States 
 
            in 1975, she has been employed continuously.
 
            
 
                 Claimant began working for Quality Care, a nursing home 
 
            in Urbandale, Iowa, in the spring of either 1984 or 1985.  
 
            Her duties included providing patient care.  After three 
 
            months, she obtained other employment with Bishop Drumm, 
 
            another nursing home in Johnston, Iowa.  Her job duties 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            remain the same, although she began schooling to receive a 
 
            certificate in nursing assistance.
 
            
 
                 In February of 1986, claimant received her certificate 
 
            and continued providing complete patient care for residents 
 
            in the nursing home.  She was employed at Bishop Drumm for 
 
            approximately one year.  During this time, claimant 
 
            testified that she worked on a full-time basis of 40 hours 
 
            or more, depending upon the facility's needs.  She stated 
 
            that she would work nights and weekends, if needed.
 
            
 
                 While still with Bishop Drumm, she began to work for 
 
            Medical Personnel Pool, an agency which provides help to 
 
            those in need of nursing assistance or companions.  Again, 
 
            she was required to provide total care.  She received 
 
            nursing assistance jobs, and received work assignments 
 
            through phone calls from the agency.
 
            
 
                 In capacity with her position with the Medical 
 
            Personnel Pool, claimant was able to freely pick and choose 
 
            the hours and assignments she wanted.  She was also able to 
 
            turn down work that she did not want.
 
            
 
                 In May of 1986, claimant also began to work for Medical 
 
            Personnel Pool and Kimberly Quality Care.  For both 
 
            agencies, she provided nurse's assistance duties for various 
 
            health care facilities.  Additionally, in February of 1988 
 
            through May of 1989, claimant also worked for Nurse Force, 
 
            Inc., another agency which provided the same types of 
 
            services and work arrangements as Medical Pool Personnel and 
 
            Kimberly Quality Care.
 
            
 
                 At the heart of this dispute is claimant's status as an 
 
            employee.  She stated that she preferred to work for the 
 
            various agencies so that she could accept as many or as few 
 
            hours as she wanted in order to maintain flexibility in her 
 
            schedule.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The sole issue to be addressed is claimant's correct 
 
            rate of compensation under the Iowa Workers' Compensation 
 
            Law.
 
            
 
                 Iowa Code section 85.36 provides, in pertinent part:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                    ....
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                    ....
 
            
 
                    10.  If an employee earns either no wages or 
 
                 less than the usual weekly earnings of the regular 
 
                 full-time adult laborer in the line of industry in 
 
                 which the employee is injured in that locality, 
 
                 the weekly earnings shall be one-fiftieth of the 
 
                 total earnings which the employee has earned from 
 
                 all employment during the twelve calendar months 
 
                 immediately preceding the injury.
 
            
 
                 Claimant argues that her workers' compensation rate 
 
            should be based on the total amount of income she earned 
 
            during the twelve months preceding the injury.  She argues 
 
            that she was not a full-time employee of any of the medical 
 
            pools for which she worked.  In fact, claimant explained 
 
            that she chose not to become a full-time employee for 
 
            anyone, even though she had several offers from facilities 
 
            for which she provided help through the assignments she 
 
            received from Medical Personnel Pool, Kimberly Quality Care, 
 
            or Nurse Force, Inc.  Her preference was to work as many 
 
            hours a week as she wanted so that she could take extended 
 
            vacations, and so that she could tailor her work schedule to 
 
            fit her lifestyle.  As a result, claimant would sometimes 
 
            work as few as 30 hours per week, or as many as eight or 
 
            nine hours per week.  Additionally, claimant worked 
 
            approximately six months in 1988.  Due to her injury, 
 
            claimant is currently unable to work.
 
            
 
                 If claimant is considered a part-time employee, her 
 
            yearly earnings prior to the injury equal $23,121.06 
 
            (Claimant's Exhibit 5).  This figure divided by 50 yields 
 
            gross weekly earnings of $462.42.  Her rate, based on the 
 
            applicable exemptions would be $287.70.  See Guide To 
 
            Workers' Compensation Claim Handling (July 1989).
 
            
 
                 Defendants argue that claimant was not a part-time 
 
            employee, as she worked an average of 30.44 hours per week 
 
            during the thirteen weeks preceding the injury date.  From 
 
            the time she commenced her employment with defendant, she 
 
            worked an average of 34 hours per week.
 
            
 
                 Defendants state further that they considered claimant 
 
            a full-time employee, and that she was eligible for vacation 
 
            pay and a health care plan.  These benefits are provided to 
 
            employees who work 750 hours in six months.
 
            
 
                 Defendants rely on King v. City of Mount Pleasant, 474 
 
            N.W.2d 564 (Iowa 1991).  In King, the claimant, who acted as 
 
            a mayor in Mount Pleasant, Iowa, was killed while conducting 
 
            a city council meeting.  The court found that his workers' 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            compensation rate was to be based on the income he received 
 
            from his mayoral duties.  This income was viewed as an 
 
            annual salary.  Mr. King also held employment as an 
 
            administrative manager, and any income earned from this job 
 
            was excluded in calculating the rate.
 
            
 
                 In order to apply Iowa Code section 85.36(10), it is 
 
            necessary to make a preliminary finding that Rada Campbell, 
 
            as an employee, "earns...less than the usual weekly earnings 
 
            of the regular full-time adult laborer in the line of 
 
            industry in which the employee is injured in that 
 
            locality...."
 
            
 
                 Defendants also rely on Hingtgen v. Mary Goodmann, 
 
            (Appeal Decision, September 30, 1988), to support their 
 
            position.  In Hingtgen, the agency held that in the absence 
 
            of evidence showing otherwise, Ms. Hintgen's earnings as a 
 
            domestic aide working 20 hours per week, were the usual 
 
            earnings as a regular, full-time adult laborer in the line 
 
            of industry in the locality.
 
            
 
                 In the present case, both claimant and defendants 
 
            offered evidence to show the usual earnings of a regular 
 
            full-time adult laborer in the certified nurse's aide 
 
            industry in Des Moines.  Claimant offers her testimony 
 
            regarding her ability she has in conjunction with 
 
            opportunites to secure full-time work regular hours and 
 
            shifts for several facilities in Des Moines.
 
            
 
                 Defendants rely on earnings of other workers employed 
 
            by them.
 
            
 
                 Claimant testified that on several occasions, she has 
 
            been offered full-time employment at some of the facilities 
 
            at which she has worked.  The facilities offered 40 or more 
 
            hours per week, a structured schedule or work shift, and 
 
            hourly wages of $6.75 to more than $7.00 an hour.  Claimant 
 
            turned down the full-time employment because she wanted the 
 
            flexibility of part-time employment, and the ability to 
 
            accept or reject any assignment.
 
            
 
                 Defendants offered exhibits A and B which summarized 
 
            the hours worked by other workers employed by them.  Some 
 
            employees worked an average of 40 hours a week, while others 
 
            worked an average of 4.5 hours per week.
 
            
 
                 The difficult issue to be determined is whether 
 
            claimant's rate would be most appropriately determined under 
 
            section 85.36(6) or 85.36(10).  Guidance comes from the 
 
            first unnumbered paragraph of the section.  Weekly earnings 
 
            are defined as gross salary to which a claimant would have 
 
            been entitled had she worked the customary hours for the 
 
            full pay period in which she was injured as regularly 
 
            required by the employer "for the work or employment for 
 
            which the employee was employed."
 
            
 
                 Sub-paragraph 10 has been discussed in several 
 
            published cases.  One authority has commented that the 
 
            subsection is typically used to figure the rate for part-
 
            time workers, and is beneficial to the worker who holds two 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            jobs and whose injury on a part-time job causes an inability 
 
            to work at other jobs.  Iowa Workers' Compensation Law and 
 
            Practice, Lawyer and Higgs, Section 12-8, p. 100.  In 
 
            Winters v. Te Slaa, I Iowa Indus. Comm'r Rep. 367 (1981), 
 
            the industrial commissioner determined that the rate for a 
 
            fatally part-time truck driver was correctly determined 
 
            under section 85.36(10) where he had other wages earned 
 
            during the year prior to his death.
 
            
 
                 In Ladd v. Ford Brothers Van & Storage Company, Thirty-
 
            fourth Biennial Rep., Iowa Indus. Comm'r 177 (1979), 
 
            claimant was hired to load a truck as a spot laborer and 
 
            broke his wrist on the one day that he worked.  He was held 
 
            to be a part-time employee and section 85.36(10) was 
 
            applied.
 
            
 
                 Although a difficult decision, it is determined that 
 
            claimant is considered a part-time employee, and total wages 
 
            should be taken into account in determining her rate under 
 
            85.36(10).
 
            
 
                 Most persuasive was claimant's actual working schedule, 
 
            whereby she chose to work only part of the year.  
 
            Additionally, claimant was free to pick and choose any 
 
            assignments she wanted from the defendants, and would 
 
            sometimes work as few as eight hours per week for them.  The 
 
            undersigned finds the case distinguishable from the King 
 
            case in that Mr. King was not a part-type mayor; he 
 
            fulfilled all of the mayoral duties required by his 
 
            assignment as the same.  In the instant case, claimant 
 
            certainly was a part-time nursing assistant.   And, even 
 
            though the defendants considered her to be a full-time 
 
            employee by offering vacation pay and opportunity to 
 
            purchase health insurance after working 750 hours in six 
 
            months, it was during only the second half of 1989 that 
 
            claimant would have been eligible for these benefits.  As 
 
            stated earlier, claimant did not work for the defendant from 
 
            January 1989 through May 1989 (Cl. Ex. 5).
 
            
 
                 As a result, claimant's rate is to based upon her total 
 
            earnings for the year, and divided by 50.  Claimant's gross 
 
            weekly earnings are $462.42 per week.  Her correct workers' 
 
            compensation rate is $287.70 per week.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is a part-time employee for the 
 
            defendants.
 
            
 
                 That claimant's total earnings for the twelve months 
 
            preceding the injury should be used in determining 
 
            claimant's workers' compensation rate.
 
            
 
                 That claimant's correct workers' compensation rate is 
 
            two hundred eighty-seven and 70/100 dollars ($287.70) per 
 
            week.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copietcws To:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            218 6th Ave  Ste 300
 
            P O Box 9130
 
            Des Moines IA 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          3000
 
                                          Filed December 23, 1991
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RADA CAMPBELL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 943879
 
            KIMBERLY QUALITY CARE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GALLAGHER BASSETT,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3000
 
            Claimant worked as a certified nurse's aide for three 
 
            medical personnel pools.  She would work between 8 and 89 
 
            hours per week, and was free to accept or reject any 
 
            assignment offered to her.
 
            She was injured in February 1989.  During the 12 months 
 
            preceding the accident, claimant worked only six months.
 
            The only issue presented was under which Code section should 
 
            claimant's rate be calculated.
 
            Claimant determined to be a part-time employee, and rate 
 
            calculated under Iowa Code section 85.36(10).
 
            
 
            
 
 
         
 
 
 
                    
 
                    
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RONALD E. SISTERN,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                         File No. 943902/981364
 
         CRANE COMPANY,   
 
                                              A P P E A L
 
              Employer,   
 
                                            D E C I S I O N
 
         and         
 
                     
 
         NATIONAL UNION FIRE   
 
         INSURANCE COMPANY,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 26, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of March, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Bruce L. Walker
 
         Attorney at Law
 
         P.O. Box 2150
 
         Iowa City, Iowa 52244-2150
 
         
 
         Mr. James E. Shipman
 
         Attorney at Law
 
         115 3rd St. SE, Ste 1200 
 
         Cedar Rapids, Iowa 52401
 
         
 
 
            
 
 
 
              
 
              
 
                                                 5-1803
 
                                                 Filed March 17, 1993
 
                                                 Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            RONALD E. SISTERN,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File No. 943902/981364
 
            CRANE COMPANY,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            NATIONAL UNION FIRE   
 
            INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant sustained a work-related aggravation to a 
 
            preexisting back condition.
 
            He was given a 15 percent functional impairment rating, and 
 
            no work restrictions.  Claimant was released to return to 
 
            his old job, but bid into a lower paying position that 
 
            required less lifting.
 
            
 
            Claimant awarded 15 percent industrial disability.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                     :
 
         JOHN D. LAWRENCE,     :
 
                     :
 
              Claimant,   :       File No. 943913
 
                     :
 
         vs.         :          A P P E A L
 
                     :
 
         INTERNATIONAL PAPER COMPANY,    :        D E C I S I O N
 
                     :
 
              Employer,   :
 
              Self-Insured,    :
 
              Defendant.       :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         issues
 
         Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         1.  Did the deputy err in determining that the claimant sustained 
 
         his burden of proof that he had an injury arising out of and in 
 
         the course of his employment on March 13, 1990?
 
         2.  Did the deputy err in determining that the claimant's current 
 
         disability, if any, was causally connected to the alleged injury 
 
         on March 13, 1990?
 
         3.  Did the deputy err in awarding the claimant permanent partial 
 
         disability benefits equal to ten per cent [sic] of the body as a 
 
         whole?
 
         findings of fact
 
         The findings of fact contained in the proposed agency decision 
 
         filed August 18, 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 was born on December 21, 1962 and is a high school 
 
         graduate.  He completed one semester at Clinton Community College 
 
         and currently attends Hamilton Technical Institute where he is 
 
         working on an associate degree in computer aided drafting.  
 
         Claimant's work history prior to 1983 was as a gas station 
 
         attendant and assistant manager.  In 1983, he commenced working 
 
         for employer.  He worked one week as a sheet shaker and then 
 
         moved to the other side of the plant where he packed cartons for 
 
         about six months.  For the next year and a half he caught cartons 
 
         at the end of a conveyor belt and stacked them either on a pallet 
 
         or into a case and then on a pallet.  Afterwards, he changed jobs 
 
         and was assigned to stripping excess waste off cartons and 
 
         cutting cartons individually and stacking them on a pallet.  He 
 
         did this job for about six months and then obtained a relief job 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         as a forklift operator.  Finally, he obtained a permanent fork 
 
         truck operator position in the shipping department around 1987.  
 
         In March 1990, his duties included loading and unloading trucks.
 
         
 
              On July 9, 1987, claimant was involved in a work incident 
 
         where his fork truck fell off the dock while he was loading a 
 
         truck which the driver pulled away without shutting the door.  
 
         The incident resulted in bruises on claimant's forearms but no 
 
         other significant medical problems.  However, some months 
 
         afterwards, claimant began experiencing lower back pain and 
 
         sought treatment from Charles J. Droste, D.C., a chiropractor.  
 
         In October 1989, he sought medical treatment at Bluff Medical 
 
         Center.  He was put on conservative physical therapy.
 
         
 
              Claimant testified that he was injured at work on March 13, 
 
         1990, as a result of repetitive driving over an uneven dock 
 
         plate.  He reported the incident to Steve Coppess and called 
 
         Diane Honeywell the next day.  Claimant was taken off work until 
 
         May 1990.  At that time, he was transferred to the plant on 
 
         Harrison Drive and was given a more moderate job with smoother 
 
         dock plates.
 
         
 
              Claimant testified that on January 6, 1990, he re-injured 
 
         his back while driving back and forth from the old to the new 
 
         facility on uneven concrete.  He lost no time from work as a 
 
         result of this incident.
 
         
 
              A review of the pertinent medical evidence of record reveals 
 
         that claimant saw Dr. Droste on August 12, 1988 with complaints 
 
         of low back pain.  He noted that claimant had a similar condition 
 
         the year before.  A soft tissue massage was performed.  This 
 
         procedure was repeated on August 16, 1988 (Exhibit F).
 
         
 
              On October 11, 1989, claimant presented to Bluff Medical 
 
         Center with complaints of lower back pain, unimproved with 
 
         chiropractic treatment.  On examination, straight leg raising was 
 
         positive bilaterally before 60 degrees for tight ham strings and 
 
         ache in the lower back.  X-rays were within normal limits except 
 
         for some straightening of the lumbar spine consistent with muscle 
 
         spasms.  Physical therapy was recommended.  (Ex. E, page 1).
 
         
 
              On March 14, 1990, claimant returned to Bluff Medical Center 
 
         where he saw Charlton Barnes, M.D., orthopedic surgeon.  He 
 
         presented with complaints of marked difficulty with his back, 
 
         pain down his right leg and into his right calf.  Straight leg 
 
         raising was markedly positive on the right.  Further testing was 
 
         recommended.  On March 19, 1990, he underwent a CT scan of the 
 
         lumbar spine which was abnormal (Ex. E, p. 4).  On April 2, 1990, 
 
         he underwent an MRI of the lumbar spine which was also abnormal 
 
         (Ex. E, p. 5).  Dr. Barnes reported that the CAT scan and MRI 
 
         showed disc protrusion of L5, S1.  (Ex. E, p. 2).
 
         
 
              On April 19, 1990, Dr. Barnes released claimant for light 
 
         duty.  However, no jobs were available and claimant remained off 
 
         work.  Dr. Barnes then referred claimant for EMG studies and 
 
         neurological examination.  Prior thereto, claimant went on his 
 
         own to see Eugene E. Herzberger, M.D., for neurosurgical 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         evaluation.  Dr. Herzberger noted bilateral lumbosacral muscle 
 
         spasm with limitation of motions of the lumbosacral spine and 
 
         limited straight leg raising at about 55-60 degrees bilaterally.  
 
         He recommended continued conservative therapy (Ex. H, p. 1).
 
         
 
              An evaluation performed by Dr. Ancheta on April 25, 1990 
 
         revealed normal EMG studies of the right lower extremity.  He 
 
         found no definite evidence of focal neurologic deficits and 
 
         attributed claimant's low back pain to L5-S1 disc protrusion.  He 
 
         recommended continued conservative therapy (Ex. E, pp. 7-8).
 
         
 
              A follow-up examination with Dr. Herzberger on May 10, 1990, 
 
         revealed that claimant's condition had improved (Ex. H, p. 2).
 
         
 
              Dr. Barnes released claimant for work activity on May 14, 
 
         1990.  On June 21, 1990, claimant presented with spinal headaches 
 
         and a myelogram was ordered.  This was within normal limits (Ex. 
 
         E, p. 10).  On June 29, 1990, Dr. Barnes ordered a corset and 
 
         seat back pad to alleviate claimant's back symptoms.  On August 
 
         27, 1990, claimant was discharged from Dr. Barnes' care (Ex. E, 
 
         pp. 2-3).
 
         
 
              On January 7, 1991, claimant returned to Dr. Barnes with 
 
         complaints of low back pain radiating into the right leg.  He was 
 
         tried on Robaxin and a corset.  By February 7, 1991, his 
 
         condition was somewhat improved.  (Ex. E, p. 3).
 
         
 
              On May 13, 1991, claimant returned to Dr. Colah for 
 
         follow-up examination.  Dr. Colah agreed with continued 
 
         conservative therapy.  He also recommended a possible job change 
 
         which does not require strenuous exercise or use of a vibrating 
 
         machine.  (Ex. G, p. 3).
 
         
 
                                conclusions of law
 
         
 
              The first issue to be determined is whether claimant 
 
         sustained an injury on March 13, 1990 which arose out of and in 
 
         the course of his employment with employer.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on March 13, 1990, which 
 
         arose out of and in the course of his employment. McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman 
 
         v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967).  The 
 
         words "arising out of" have been interpreted to refer to the 
 
         cause and origin of the injury.  McClure v. Union County, 188 
 
         N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School 
 
         District, 68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course 
 
         of" refer to the time, place and circumstances of the injury.  
 
         McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury 
 
         occurs in the course of the employment when it is within the 
 
         period of employment at a place the employee may reasonably be, 
 
         and while the employee is doing work assigned by the employer or 
 
         something incidental to it.  Cedar Rapids Community School 
 
         District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); McClure 188 
 
         N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              The Supreme Court has defined a personal injury for the 
 
         purposes of workers' compensation cases.  Almquist v. Shenandoah 
 
         Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this case the Court 
 
         found that a personal injury, is an injury to the body, the 
 
         impairment of health, or a disease, not excluded by the Workers 
 
         Compensation Act, which comes about, not through the natural 
 
         building up and tearing down of the human body, but because of a 
 
         traumatic or other hurt or damage to the health or body of an 
 
         employee.  The injury to the human body must be something, 
 
         whether an accident or not, that acts extraneously to the natural 
 
         processes of nature, and thereby impairs the health, overcomes, 
 
         injures, interrupts, or destroys some function of the body, or 
 
         otherwise damages or injures a part or all of the body.  
 
         
 
              The Almquist Court further observed that while a personal 
 
         injury does not include an occupational disease under the 
 
         Workmen's Compensation Act, yet an injury to the health may be a 
 
         personal injury.  A personal injury includes a disease resulting 
 
         from an injury.  However, the result of changes in the human body 
 
         incident to the general processes of nature do not amount to a 
 
         personal injury.  This is true, even though natural change may 
 
         come about because the life has been devoted to labor and hard 
 
         work.  Results of those natural changes do not constitute a 
 
         personal injury even though the same brings about impairment of 
 
         health or the total or partial incapacity of the functions of the 
 
         human body. 
 
         
 
              The Supreme Court has also recognized that a cumulative 
 
         injury may occur over a period of time.  The injury in such cases 
 
         occurs when, because of pain or physical disability, the claimant 
 
         is compelled to leave work.  McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368, 374 (Iowa 1985).  Moreover, claimant's last 
 
         employer becomes liable for the cumulative injury, even if the 
 
         incidents that lead to the ultimate injury do not occur while a 
 
         claimant is employed with the last employer.  McKeever, 379 
 
         N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359 
 
         N.W.2d 428, 434-35 (Iowa 1984).
 
         
 
              *****
 
         
 
              [Claimant testified that he called Diane Honeywell on March 
 
         14, 1990, and reported that he was experiencing severe back pain.  
 
         At that time, he related that he thought it might be a 
 
         continuation of the back pain he had experienced in 1987.  
 
         
 
              Claimant now asserts that he suffered an injury arising out 
 
         of and in the course of his employment on March 13, 1990.  
 
         Claimant operated a forklift for his employer.  Claimant urges 
 
         that his present back condition was caused by repeated driving 
 
         over a bumpy surface with the forklift.
 
         
 
              In 1987, claimant was involved in an accident at work while 
 
         driving a forklift.  Claimant was loading a truck when the truck 
 
         driver prematurely pulled a away from the dock, causing 
 
         claimant's forklift to fall forward and injuring claimant.  
 
         Claimant sought treatment for back problems from several doctors 
 
         over the next few years.  When consulting each of these doctors, 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         claimant consistently attributed his back problems to the 1987 
 
         injury.  Claimant acknowledges back pain since the 1987 injury.  
 
         At one point, claimant was informed he could not pursue a 
 
         workers' compensation action for the 1987 injury because the 
 
         statute of limitations had expired.
 
         
 
              The March 13, 1990 incident did not involve a traumatic 
 
         accident.  Rather, claimant testified he went to work that day 
 
         without any back pain, but later that night experienced 
 
         especially sharp back pain.  Claimant urges that March 13, 1990 
 
         constitutes a work injury from driving a forklift over bumpy 
 
         surfaces.
 
         
 
              The deposition of Dr. Barnes confirms that claimant 
 
         attributed his back condition to the 1987 injury.  Dr. Barnes is 
 
         claimant's source of medical evidence pertaining to the 
 
         phenomenon of forklift operators suffering back problems when 
 
         driving forklifts over bumpy surfaces over long periods of time.  
 
         Dr. Barnes bases his knowledge on a study conducted by the Boeing 
 
         company.  However, Dr. Barnes in his deposition still appears to 
 
         attribute the origin of claimant's back condition to the 1987 
 
         injury.
 
         
 
              Claimant has failed to carry his burden of proof to show a 
 
         work injury occurred on March 13, 1990.  Rather, the greater 
 
         weight of the evidence shows that March 13, 1990, represented 
 
         just another incident of back pain stemming from the 1987 injury, 
 
         one of many incidents of back pain claimant admits plagued him 
 
         ever since the 1987 injury.
 
         
 
              In addition, even if claimant had established a work injury 
 
         on March 13, 1990, claimant has failed to show that his present 
 
         back condition is causally connected to that injury.  The greater 
 
         weight of the evidence shows that claimant's back condition 
 
         predated March 13, 1990, and in fact originated with claimant's 
 
         1987 forklift injury.  Claimant cannot avoid the effect of the 
 
         statute of limitations contained in Iowa Code section 85.26 by 
 
         assigning his present condition to an imaginary 1990 injury that 
 
         is in reality merely one in a long line of symptoms from his 1987 
 
         injury.]
 
         WHEREFORE, the decision of the deputy is reversed.
 
         order
 
         THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         That defendant shall pay the costs of this matter including the 
 
         transcription of the hearing.  
 
         Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. David H. Sivright, Jr.
 
         Ms. Martha Shaff
 
         Attorneys at Law
 
         408 South Second Street
 
         Clinton, Iowa 52732
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801-1596
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1108; 2402
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JOHN D. LAWRENCE,     :
 
                        :
 
                 Claimant,   :       File No. 943913
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            INTERNATIONAL PAPER COMPANY,    :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            1108; 2402
 
            Claimant suffered an injury while driving a forklift at work 
 
            in 1987, when the truck he was loading pulled away from the 
 
            dock prematurely.  Claimant experienced back pain frequently 
 
            over the next few years, and sought medical treatment from 
 
            several physicians.  Claimant told each physician his 
 
            problem began with the forklift incident in 1987.  At some 
 
            point, claimant was told he could not pursue a workers' 
 
            compensation claim because the statute of limitations had 
 
            expired.  Claimant brought an action for an alleged injury 
 
            in 1990, where he went to work without symptoms, but that 
 
            night had pain again in his back.  Claimant alleged he 
 
            suffered a work injury that day from driving the forklift 
 
            over an uneven surface.  Held that the greater weight of the 
 
            evidence showed that claimant's back condition was not 
 
            caused by a 1990 injury.  Claimant was attempting to 
 
            circumvent the statute of limitations.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOHN D. LAWRENCE,             :
 
                                          :
 
                 Claimant,                :      File No. 943913
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            INTERNATIONAL PAPER COMPANY,  :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by John D. 
 
            Lawrence, claimant, against International Paper Company, 
 
            self-insured employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an alleged injury 
 
            sustained on March 13, 1990.  This matter came for hearing 
 
            before the undersigned deputy industrial commissioner in 
 
            Davenport, Iowa on July 28, 1992.  The record was considered 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            present and testified.  Also present and testifying were 
 
            Diane Honeywell, Suzanne Nixon and Terry Gertson.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits A-N.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated July 
 
            28, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 13, 
 
            1990 which arose out of and in the course of the employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits;
 
            
 
                 4.  The extent of entitlement to weekly compensation 
 
            for permanent disability benefits;
 
            
 
                 5.  The type of permanent disability, if the injury is 
 
            found to be the cause of permanent disability; and,
 
            
 
                 6.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on December 21, 1962 and is a high 
 
            school graduate.  He completed one semester at Clinton 
 
            Community College and currently attends Hamilton Technical 
 
            Institute where he is working on an associate degree in 
 
            computer aided drafting.  Claimant's work history prior to 
 
            1983 was as a gas station attendant and assistant manager.  
 
            In 1983, he commenced working for employer.  He worked one 
 
            week as a sheet shaker and then moved to the other side of 
 
            the plant where he packed cartons for about six months.  For 
 
            the next year and a half he caught cartons at the end of a 
 
            conveyor belt and stacked them either on a pallet or into a 
 
            case and then on a pallet.  Afterwards, he changed jobs and 
 
            was assigned to stripping excess waste off cartons and 
 
            cutting cartons individually and stacking them on a pallet.  
 
            He did this job for about six months and then obtained a 
 
            relief job as a forklift operator.  Finally, he obtained a 
 
            permanent fork truck operator position in the shipping 
 
            department around 1987.  In March 1990, his duties included 
 
            loading and unloading trucks.
 
            
 
                 On July 9, 1987, claimant was involved in a work 
 
            incident where his fork truck fell off the dock while he was 
 
            loading a truck which the driver pulled away without 
 
            shutting the door.  The incident resulted in bruises on 
 
            claimant's forearms but no other significant medical 
 
            problems.  However, some months afterwards, claimant began 
 
            experiencing lower back pain and sought treatment from 
 
            Charles J. Droste, D.C., a chiropractor.  In October 1989, 
 
            he sought medical treatment at Bluff Medical Center.  He was 
 
            put on conservative physical therapy.
 
            
 
                 Claimant testified that he was injured at work on March 
 
            13, 1990, as a result of repetitive driving over an uneven 
 
            dock plate.  He reported the incident to Steve Coppess and 
 
            called Diane Honeywell the next day.  Claimant was taken off 
 
            work until May 1990.  At that time, he was transferred to 
 
            the plant on Harrison Drive and was given a more moderate 
 
            job with smoother dock plates.
 
            
 
                 Claimant testified that on January 6, 1990, he 
 
            re-injured his back while driving back and forth from the 
 
            old to the new facility on uneven concrete.  He lost no time 
 
            from work as a result of this incident.
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant saw Dr. Droste on August 12, 1988 with 
 
            complaints of low back pain.  He noted that claimant had a 
 
            similar condition the year before.  A soft tissue massage 
 
            was performed.  This procedure was repeated on August 16, 
 
            1988 (Exhibit F).
 
            
 
                 On October 11, 1989, claimant presented to Bluff 
 
            Medical Center with complaints of lower back pain, 
 
            unimproved with chiropractic treatment.  On examination, 
 
            straight leg raising was positive bilaterally before 60 
 
            degrees for tight ham strings and ache in the lower back.  
 
            X-rays were within normal limits except for some 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            straightening of the lumbar spine consistent with muscle 
 
            spasms.  Physical therapy was recommended.  (Ex. E, page 1).
 
            
 
                 On March 14, 1990, claimant returned to Bluff Medical 
 
            Center where he saw Charlton Barnes, M.D., orthopedic 
 
            surgeon.  He presented with complaints of marked difficulty 
 
            with his back, pain down his right leg and into his right 
 
            calf.  Straight leg raising was markedly positive on the 
 
            right.  Further testing was recommended.  On March 19, 1990, 
 
            he underwent a CT scan of the lumbar spine which was 
 
            abnormal (Ex. E, p. 4).  On April 2, 1990, he underwent an 
 
            MRI of the lumbar spine which was also abnormal (Ex. E, p. 
 
            5).  Dr. Barnes reported that the CAT scan and MRI showed 
 
            disc protrusion of L5, S1.  (Ex. E, p. 2).
 
            
 
                 On April 19, 1990, Dr. Barnes released claimant for 
 
            light duty.  However, no jobs were available and claimant 
 
            remained off work.  Dr. Barnes then referred claimant for 
 
            EMG studies and neurological examination.  Prior thereto, 
 
            claimant went on his own to see Eugene E. Herzberger, M.D., 
 
            for neurosurgical evaluation.  Dr. Herzberger noted 
 
            bilateral lumbosacral muscle spasm with limitation of 
 
            motions of the lumbosacral spine and limited straight leg 
 
            raising at about 55-60 degrees bilaterally.  He recommended 
 
            continued conservative therapy (Ex. H, p. 1).
 
            
 
                 An evaluation performed by Dr. Ancheta on April 25, 
 
            1990 revealed normal EMG studies of the right lower 
 
            extremity.  He found no definite evidence of focal 
 
            neurologic deficits and attributed claimant's low back pain 
 
            to L5-S1 disc protrusion.  He recommended continued 
 
            conservative therapy (Ex. E, pp. 7-8).
 
            
 
                 A follow-up examination with Dr. Herzberger on May 10, 
 
            1990, revealed that claimant's condition had improved (Ex. 
 
            H, p. 2).
 
            
 
                 Dr. Barnes released claimant for work activity on May 
 
            14, 1990.  On June 21, 1990, claimant presented with spinal 
 
            headaches and a myelogram was ordered.  This was within 
 
            normal limits (Ex. E, p. 10).  On June 29, 1990, Dr. Barnes 
 
            ordered a corset and seat back pad to alleviate claimant's 
 
            back symptoms.  On August 27, 1990, claimant was discharged 
 
            from Dr. Barnes' care (Ex. E, pp. 2-3).
 
            
 
                 On January 7, 1991, claimant returned to Dr. Barnes 
 
            with complaints of low back pain radiating into the right 
 
            leg.  He was tried on Robaxin and a corset.  By February 7, 
 
            1991, his condition was somewhat improved.  (Ex. E, p. 3).
 
            
 
                 On May 13, 1991, claimant returned to Dr. Colah for 
 
            follow-up examination.  Dr. Colah agreed with continued 
 
            conservative therapy.  He also recommended a possible job 
 
            change which does not require strenuous exercise or use of a 
 
            vibrating machine.  (Ex. G, p. 3).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury on March 13, 1990 which arose out of and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            in the course of his employment with employer.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 13, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The greater weight of the evidence in this case 
 
            supports the finding that claimant was relatively 
 
            asymptomatic on or before March 13, 1990.  While he had some 
 
            low back pain as a result of a work incident in July 1987, 
 
            claimant lost no time from work and performed his job duties 
 
            without medical restrictions or limitations.  On March 13, 
 
            1990, claimant worked the night shift from 10:30 p.m. to 
 
            6:00 a.m. the morning of March 14, 1990.  That morning, 
 
            while in bed, he felt a sharp pain in his low back when he 
 
            rolled over.  The pain was so severe that he sought medical 
 
            treatment.  He was examined by Dr. Barnes.  He related to 
 
            Dr. Barnes that he had a work injury in July 1987, but was 
 
            asymptomatic since that time.  On March 14, 1990, he 
 
            presented with increased and marked back pain with pain down 
 
            his right leg into his right calf.  A CAT scan of the lumbar 
 
            spine taken on March 19, 1990 showed a mild disc protrusion 
 
            at L4-5 and at L5-S1.
 
            
 
                 Claimant testified that he called Diane Honeywell on 
 
            March 14, 1990, and reported that he was experiencing severe 
 
            back pain.  At that time, he related that he thought it 
 
            might be a continuation of the back pain he had experienced 
 
            in 1987.  However, after thinking about it for a little 
 
            while, claimant felt that the recurrence of back pain may be 
 
            due to a four year history of driving a fork lift over an 
 
            uneven dock plate.  In any event, claimant is not a 
 
            physician and his conjecture as to the etiology of his pain 
 
            is irrelevant.  The fact is that claimant went to work on 
 
            March 13, 1990 asymptomatic.  He returned from work on March 
 
            14, 1990, after eight hours on the fork lift, and 
 
            experienced severe and intractable back pain.  There were no 
 
            intervening circumstances which could have caused symptoms.
 
            
 
                 Although many injuries are traumatic in nature, no 
 
            accident is required.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 254 (Iowa 1963).  Neither does there have to be 
 
            a special incident or unusual occurrence.  Ford v. Goode, 38 
 
            N.W.2d 158, 159 (Iowa 1949).  The Iowa Supreme Court has 
 
            declared the selection of an injury date unimportant in the 
 
            case where the evidence showed that another date, only a few 
 
            days off from the date given in the claimant's application, 
 
            was the injury date.  Yeager v. Firestone Tire and Rubber 
 
            Company, 112 N.W.2d 299, 301 (Iowa 1961).  A personal injury 
 
            may develop gradually over an extended period of time.  
 
            Black v. Creston Auto Co., 281 N.W. 189 (Iowa 1938).  Dr. 
 
            Barnes testified in a deposition on June 24, 1992, that 
 
            based on a study done by Boeing Aircraft Corporation, fork 
 
            lift drivers have a history of back problems because of the 
 
            constant bumping and vibrations experienced during the 
 
            course of driving this vehicle.  (Ex. K, pp. 7-8).
 
            
 
                 Accordingly, it is determined that claimant has met his 
 
            burden of proof that he sustained an injury on March 13, 
 
            1990, arising out of and in the course of employment with 
 
            employer.
 
            
 
                 Since claimant has suffered an injury, the next 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of March 13, 1990, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this case, Dr. Barnes testified that in his opinion, 
 
            claimant has a permanent impairment as a result of his 
 
            protruded disc at L5-S1 and is limited to lifting a maximum 
 
            of 40 pounds or 15-20 pounds repetitively.  As a result of 
 
            his bulging disc, Dr. Barnes gave him a five percent 
 
            permanent impairment rating.  (Ex. K, p. 10).
 
            
 
                 Dr. Barnes opinion is not refuted or contraindicated by 
 
            any other medical evidence in the record.  Therefore, his 
 
            testimony is the most compelling evidence in this case.  He 
 
            has had the most opportunity to treat and observe claimant.  
 
            He has followed claimant's entire course of treatment for 
 
            his back problems.  Consequently, claimant has satisfied his 
 
            burden of proof in demonstrating that he has suffered a 
 
            permanent injury.
 
            
 
                 The next question to be resolved is the extent of 
 
            claimant's industrial disability.
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 
 
            loss of earning capacity and not a mere `functional 
 
            disability' to be computed in the terms of percentages of 
 
            the total physical and mental ability of a normal person.  
 
            The essence of an earning capacity inquiry then, is not how 
 
            much has the claimant been functionally impaired, but 
 
            whether that impairment, in combination with the claimant's 
 
            age, education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 In this instance, claimant is relatively young and his 
 
            industrial disability is not as serious as it would be for 
 
            an older employee.  McCoy v. Donaldson Co., Inc., I IWAC 
 
            Decisions of the Iowa Industrial Commissioner 400, 405 
 
            (Appeal 1989).  Claimant has a five percent functional 
 
            impairment which has resulted in some lifting restrictions.  
 
            Claimant is still working at International Paper Company and 
 
            is earning more money now than he was at the time of his 
 
            injury.  Claimant's capacity to earn more money through 
 
            overtime is limited because of his attendance at Hamilton 
 
            Technical College and not because of his impairment.  
 
            Claimant admitted that he performs his usual job without 
 
            restriction but qualified this when he stated that the job 
 
            requires no manual lifting.  Therefore, while claimant has 
 
            not experienced a loss of earnings, his earning capacity is 
 
            diminished because of his back problems.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            ten percent industrial disability.  He is entitled to fifty 
 
            weeks of permanent partial disability benefits at the rate 
 
            of $234.83 per week.
 
            
 
                 Claimant is also entitled to healing period benefits 
 
            during his time off work which was stipulated to be from 
 
            March 14, 1990 through May 20, 1990.
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached.  Armstrong Tire & Rubber Co. 
 
            v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code section 85.34(1) (1991), the Kubli court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, 312 N.W.2d 
 
            at 65.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Ia. Ct. App. 1984).  the finding of a 
 
            termination of healing period necessarily precludes the 
 
            discussion of the running award.  Hoskins v. Quaker Oats, 
 
            Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181, 
 
            185 (App. 1985).  Since the healing period contemplates an 
 
            inability to work, a healing period cannot start until 
 
            claimant leaves work.  This is true even if claimant is 
 
            experiencing symptoms on the job but does not leave work for 
 
            a variety of reasons.  Boyd v. Western Home, File number 
 
            890207 (Iowa Industrial Commissioner App. June 26, 1991).
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.
 
            
 
                 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).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Defendants argue that the medical charges which 
 
            claimant has submitted are not causally related to the March 
 
            13, 1990 work injury and were not authorized by defendants.  
 
            As previously noted, the employer has the right to choose 
 
            the provider of care, except where the employer has denied 
 
            liability for the injury.  Defendants have denied liability 
 
            throughout these proceedings.  Since it has been determined 
 
            that claimant's injury arose out of and in the course of 
 
            employment with employer and his symptoms are causally 
 
            connected to his work injury, the medical expenses incurred 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            to treat his injury are compensable.  Claimant's outstanding 
 
            medical bills total $4,885.92.  (Ex. L, p. 1).  Therefore 
 
            defendants shall pay to claimant the costs of all medical 
 
            and mileage expenses incurred for treatment of his March 
 
            1990 work injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants pay to claimant healing period benefits 
 
            at the rate of two hundred thirty-four and 83/100 dollars 
 
            ($234.83) per week for the period from March 14, 1990 
 
            through May 20, 1990.
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred thirty-four and 83/100 dollars ($234.83) per week 
 
            commencing May 21, 1990.
 
            
 
                 That defendants pay claimant all medical and mileage 
 
            expenses incurred for treatment of his injury on March 13, 
 
            1990.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for previously payments made under a 
 
            non-occupational group plan.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            the Agency.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David H Sivright Jr
 
            Ms Martha Shaff
 
            Attorneys at Law
 
            408 South Second Street
 
            Clinton Iowa 52732
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport Iowa 52801-1596
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                      5-1100; 5-1108; 5-1803; 5-2500
 
                                      Filed August 18, 1992
 
                                      JEAN M. INGRASSIA
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOHN D. LAWRENCE,   
 
                      
 
                 Claimant,                       File No. 943913
 
                      
 
            vs.                               A R B I T R A T I O N
 
                      
 
            INTERNATIONAL PAPER COMPANY,         D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant found to have sustained a work-related injury to 
 
            his back although he could not cite to a special incident, 
 
            accident or unusual occurrence.  Claimant worked an eight 
 
            hour shift driving a forklift and shortly thereafter 
 
            experienced severe and intractable back pain.  Claimant was 
 
            relatively asymptomatic prior to experiencing symptoms on 
 
            March 13, 1990 and there were no intervening factors, other 
 
            than work activity, which could have caused his back 
 
            problems.
 
                 
 
            5-1108
 
            Unrefuted medical evidence from claimant's treating 
 
            physician causally connects claimant's back problems to his 
 
            long history of operating a forklift.  Therefore, claimant's 
 
            symptoms found to be causally connected to his work 
 
            activity.
 
            
 
            5-1803
 
            Claimant found entitled to 50 weeks of permanent partial 
 
            disability benefits.  Claimant a younger individual (29 
 
            years), high school graduate, and five percent functional 
 
            impairment rating, determined to be ten percent permanently 
 
            impaired.  Claimant returned to work two weeks after his 
 
            injury and earns more now than he did at the time of his 
 
            injury.  Claimant continues to operate a forklift which 
 
            requires no manual lifting.  Claimant's treating physician 
 
            restricted him to 40 pounds lifting and 15-20 pounds 
 
            repetitive lifting.  Claimant has a loss of earning 
 
            capacity.
 
            
 
            5-2500
 
            Defendants have denied liability throughout.  Since 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            claimant's injury found to arise out of and in the course of 
 
            his employment with employer, medical charges for treatment 
 
            of his injury were found causally related to the injury and, 
 
            although not authorized by defendants, compensable.  The 
 
            employer has to right to choose the provider of care, except 
 
            where the employer has denied liability for the injury.  
 
            Iowa Code section 85.27.