BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
       ____________________________________________________________
 
               
 
       PAUL CUNNINGHAM, 
 
               
 
          Claimant, 
 
               
 
       vs.          
 
                                                File No. 951767
 
       JAMES SCHMITZ MASONARY a/k/a,    
 
       GENE SCHMITZ,     
 
                                             A R B I T R A T I O N
 
          Employer, 
 
                                                D E C I S I O N
 
       and          
 
               
 
       HERITAGE INSURANCE,   
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       ___________________________________________________________
 
                         STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration upon the petition of 
 
       claimant, Paul Cunningham, against his former employer, James 
 
       Schmitz Masonry a/k/a Gene Schmitz, and its insurance carrier, 
 
       Heritage Insurance Company, defendants.  Claimant filed his 
 
       petition on January 20, 1993.  In his petition he requested 
 
       workers' compensation benefits for an alleged work-related 
 
       injury.  In the prehearing conference report, which was jointly 
 
       filed by the parties, the attorneys for the litigants indicated 
 
       they would be ready for hearing on or after April 1, 1994.  
 
       According to the hearing assignment order, the matter was set for 
 
       a back-up hearing date on September 14, 1994. 
 
            
 
            The hearing was held on the aforesaid back-up hearing date 
 
       at the Pine Crest Building in Waterloo, Iowa.  The parties 
 
       offered joint exhibits 1-5.  The joint exhibits included two 
 
       depositions of the claimant which were taken on February 24, 1993 
 
       and on August 17, 1994, and two depositions of the surgeon, 
 
       Arnold Delbridge, M.D., which were taken on August 31, 1994 and 
 
       September 7, 1994.
 
            
 
            After the joint exhibits were admitted, claimant rested 
 
       without presenting additional evidence on direct examination.  
 
       Defendants then proceeded with their case.  The following 
 
       witnesses testified on behalf of defendants:  Marceline Schmitz, 
 
       bookkeeper and spouse of defendant; Ronald Dew, former foreman 
 
       for Gene Schmitz; Tracy Payne, former employee of Gene Schmitz; 
 
       Scott Stork, private investigator; and, Don Caffrey, also a 
 
       private investigator.
 
            
 
            After defendants presented their case, claimant called two 
 
       rebuttal witnesses.  Claimant testified on rebuttal.  James 
 
       Cunningham, father of claimant, also testified as a rebuttal 
 

 
 
 
 
 
 
 
 
 
       witness.  Their testimonies were limited to rebuttal matters.
 
       
 
                                 ISSUES
 
            
 
            The issues to be determined are:  1) whether claimant 
 
       sustained an injury which arose out of and in the course of his 
 
       employment; 2) whether there is a causal relationship between the 
 
       alleged injury and any temporary or permanent disability; 3) 
 
       whether claimant is entitled to any healing period or permanent 
 
       disability benefits; 4) whether claimant is entitled to any 
 
       medical benefits pursuant to section 85.27 of the Iowa Code; 5) 
 
       whether claimant is entitled to certain costs pursuant to rule 
 
       343 IAC 4.33; and, 6) whether claimant is a credible witness.
 
       
 
                FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
            
 
            The deputy, having heard the testimony and considered all of 
 
       the evidence makes the following findings of fact and conclusions 
 
       of law:
 
            
 
            The burden of proof is on the party asserting the 
 
       affirmative of an issue in an administrative proceeding; "on the 
 
       party who would suffer loss if the issue were not established."  
 
       Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. 
 
       Ides, 412 N.W.2d 904 (Iowa 1987).
 
            
 
            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).
 
            
 
            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).
 
            
 
            The question of causal connection is essentially within the 
 
       domain of expert testimony.  The expert medical evidence must be 
 
       considered with all other evidence introduced bearing on the 
 
       causal connection between the injury and the disability.  The 
 
       weight to be given to any expert opinion is determined by the 
 
       finder of fact and may be affected by the accuracy of the facts 
 
       relied upon by the expert as well as other surrounding 
 
       circumstances.  The expert opinion may be accepted or rejected, 
 
       in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
       (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
       1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
       (1965).
 
            
 
            Claimant is 30-years-old.  He has a limited education and he 
 
       does not have a high school diploma or its equivalency.  He is 
 
       functioning in the borderline range with respect to his 
 
       intellectual abilities (Exhibit 4-27).  According to Eva 
 
       Christensen, Ph.D., and clinical psychologist, claimant's 
 
       "Academic achievement is learning disabled for reading, in terms 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       of word recognition, and in expressive written language. . ." 
 
       (Ex. 4-26).
 
            
 
            At the time of the hearing, claimant was divorced from his 
 
       third wife.  He has one child, Rachel, from the marriage to his 
 
       first wife.  Claimant testified he did not know the whereabouts 
 
       of his eldest child and he had not seen his first wife for ten 
 
       years.  
 
            
 
            Claimant has two children by his second wife.  They were 
 
       both born prior to the date of the alleged work injury.  At the 
 
       time of the hearing, those children resided with their mother, 
 
       who is the custodial parent.  Claimant testified he provided 
 
       support to those two children but that as of the date of the 
 
       alleged injury date, claimant resided with his parents in Elk Run 
 
       Heights rather than with his second wife.   Claimant was divorced 
 
       from his second wife after the date of the alleged work injury.
 
            
 
            Also, after the date of the alleged work injury, claimant 
 
       had another child who was born to claimant and his third wife.  
 
       That marriage took place after the alleged work injury date, but 
 
       it ended in divorce prior to the date of the workers' 
 
       compensation hearing.   Claimant testified his third wife left 
 
       him because he could not find a job (Ex. 1-5).  As of the date of 
 
       the hearing, the child from the third marriage resided with the 
 
       mother, the custodial parent.  Claimant believed his youngest 
 
       child resided in Jessup, Iowa.
 
            
 
            At the time of his second deposition, claimant testified 
 
       that he had lived with his parents from 1992 to 1993 and then he 
 
       moved into the home of a woman who lived at 220 River Forest 
 
       Road, Evansdale.  Claimant testified he lived there for one year.  
 
            
 
            Claimant testified that since August of 1994, he had been 
 
       residing with another woman and that they had lived together in 
 
       Independence, Iowa.  However, claimant testified she had moved to 
 
       Fort Dodge three weeks prior, and that just two days prior to the 
 
       date of the deposition, he had moved there and, he was again 
 
       residing with her.  He stated he was financially dependent on 
 
       her.  During his rebuttal testimony, claimant testified he 
 
       resided at 336 Ave. F in Fort Dodge, Iowa.  
 
            
 
            Defendants vigorously questioned claimant's credibility.  
 
       The issue of credibility is central to the resolution of this 
 
       claim.  The credibility of a witness is always an issue which 
 
       must be determined by the deputy industrial commissioner.  
 
            
 
            In their brief, defendants argued:
 
            
 
               Claimant is a completely dishonest person who has 
 
            defrauded the workers' compensation carrier, Social 
 
            Security Administration, Internal Revenue Service, and 
 
            his own doctors.  The evidence in this case proves 
 
            claimant's dishonesty to a certainty, and any award to 
 
            claimant would involve sheer speculation on the part of 
 
            the deputy as to whether any particular thing said by 
 
            the claimant is true.
 
            
 
            Since defendants challenged claimant's credibility, they 
 
       conducted surveillance of claimant on at least eight separate 
 
       days.  The deputy industrial commissioner reviewed the videotapes 
 
       in detail.  She relied heavily on the tapes as evidence of 
 
       claimant's condition.  There is no doubt in this deputy's mind 
 
       that claimant lacks credibility.  He is not a credible witness.  
 
       It is apparent that much of claimant's testimony is in direct 
 
       contradiction to the events portrayed in the three videotapes 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       which were submitted as evidence.  The three videotapes reveal 
 
       claimant performing many activities which he had earlier 
 
       represented were too difficult for him to attempt.  Claimant was 
 
       viewed walking with a normal gait even though his surgeon, Arnold 
 
       Delbridge, M.D., had only observed claimant walking with an 
 
       antalgic gait.  Claimant was able to push manually a pick-up 
 
       truck with a camper.  Claimant could hop in and out of vehicles 
 
       without difficulties, even though he had indicated that driving 
 
       caused him excruciating pain.  Claimant was seen bending over the 
 
       hoods of automobiles, despite his claims that bending and 
 
       reaching increased his level of pain.  Claimant was even depicted 
 
       jogging from the auto shop to another vehicle.
 
            
 
            Claimant is not a credible witness.  Claimant's versions of 
 
       the injury varied.  He made numerous inconsistent statements 
 
       regarding the alleged work injury.  It is impossible to determine 
 
       which, if any, version is accurate.   On the date of the alleged 
 
       work injury, claimant was examined by HoSung Chung, M.D., at 
 
       Covenant Medical Center.  Dr. Chung issued his consultation 
 
       report (Ex. 4-6).  In his report, Dr. Chung recorded the history 
 
       which claimant reported to him.  Dr. Chung noted:
 
            
 
               HISTORY:  This 25 year old white male, divorced, 
 
            construction worker, was brought into the emergency 
 
            room by his fiancee with a history of injury to his low 
 
            back.  According to his elaboration, he works as a 
 
            construction worker, and lifted a cement block which 
 
            was about 45 pounds in weight at around 9 a.m. today.  
 
            He noted a sharp pain at the low back at that instant.  
 
            He informed his supervisor, but he was asked to 
 
            continue to work until around noon time.  Because of 
 
            increasingly severe low back pain and numbness of toes 
 
            of both feet, he was seen by Dr. Widen at around 3:30 
 
            p.m. The patient was sent here for further evaluation 
 
            and care.
 
            
 
               PAST MEDICAL HISTORY:  The patient had similar 
 
            incident of low back injury by lifting a big box while 
 
            working at a cheese factory in Minnesota about a year 
 
            ago.  He was evaluated in Mayo Clinic, was diagnosed to 
 
            have a herniated disc of the low back and was 
 
            recommended surgery.  However, he declined the idea of 
 
            surgery and continued to work as a construction worker 
 
            despite he was told not to do so.
 
            
 
               . . . .
 
            
 
               IMPRESSION:  1.  Low back injury, exact pathology 
 
            unknown.
 
       
 
       (Ex. 4-6)
 
            
 
            The patient history in the clinical note of the Iowa Medical 
 
       Clinic, P.C., reveals a different version of the injury.  The 
 
       note indicates:
 
            
 
            Paul J. Cunningham is a 27 year old resident of Elk 
 
            Run, Iowa.  He presents at the direction of Heritage 
 
            Insurance for an independent medical evaluation.  The 
 
            patient tells me that he was injured on the 22nd of May 
 
            1990.  He was carrying two 64 pound blocks up a plank 
 
            into a pick-up, when he felt pain and his back popped 
 
            and he dropped the blocks and fell off the plank.  He 
 
            had severe back pain at that time and numbness in his 
 
            legs.  He states the foreman refused to take him to the 
 
            hospital and that he walked about five miles to the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            hospital. . . .
 
       
 
       (Ex. 4-143)
 
            
 
            In his first deposition, claimant testified that he was 
 
       carrying cement blocks which weighed approximately 40 pounds 
 
       each.  He maintained the then working foreman, Ron Dew, started 
 
       yelling at him to carry four blocks at a time rather than the two 
 
       which claimant was carrying.  Claimant then testified:
 
            
 
               A.  And so I went up to the plank a couple times to 
 
            carry four blocks, two in each arm, and probably about 
 
            the fourth, fifth time when I was going up there, 
 
            carried two blocks in each arm, then I went down.  I 
 
            twisted and I heard something pop, and I couldn't move 
 
            and lost my balance and fell off the plank.
 
            
 
                  Then I landed there, and I had tears in my eyes 
 
            and looked straight up, and Ron started yelling at me, 
 
            and he said, "Either get up or find a new job."  And I 
 
            says, "Ron, I'm in pain.  I can't move. . . ."
 
       
 
       (Ex. 1-36,37)
 
            
 
            Defendants called two former employees to testify.  They 
 
       testified about the events which allegedly occurred on May 22, 
 
       1990.  Both Ron Dew and Tracy Payne had been on the job site on 
 
       the date in question.  Claimant and the two witnesses were 
 
       engaged in masonry work.  Mr. Dew was the mason, Mr. Payne was 
 
       the tender, and claimant was described as a "gofer."  Claimant 
 
       had worked for defendant employer for approximately six weeks.
 
            
 
            Mr. Dew had been the supervisor on the construction project.  
 
       He had worked for defendant-employer for approximately 25 years 
 
       until he terminated his employment relationship in February of 
 
       1991.  He was a disinterested witness.  His testimony is found to 
 
       be credible.  Mr. Dew testified:
 
            
 
               Q.  On May 22, 1990, were you aware at any point 
 
            during the day of Mr. Cunningham sustaining a work 
 
            injury?
 
            
 
               A.  No, I was not.
 
            
 
               Q.  I want to read to you Mr. Cunningham's testimony 
 
            from Exhibit 1, page 36, line 19, which has been 
 
            admitted into evidence in this case.
 
            
 
                  . . . .
 
            
 
               Q. . . ."And I went up there again and Ron started 
 
            yelling at me, said some naughty things and stuff, and 
 
            he says, if you don't start picking up four blocks at a 
 
            time, you might as well find another job, because 
 
            somebody like you probably never worked hard your 
 
            entire life."  Now, the part I want to refer you to is 
 
            the part about telling him to carry four blocks at a 
 
            time.  As I understand it from what you have just said, 
 
            they weigh 42 pounds each?
 
            
 
               A.  (Nods yes.)
 
            
 
                  DEPUTY COMMISSIONER:  You have to give a verbal 
 
            response, sir.
 
            
 
               A.  Right.
 

 
 
 
 
 
 
 
            
 
               Q.  And what is the case, did you ever tell Paul 
 
            Cunningham to carry four blocks at a time --
 
            
 
               A.  No.
 
            
 
               Q.  -- on that day?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  Did you ever tell Paul Cunningham to carry four 
 
            blocks at a time at any time on any day?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  Did you ever tell any employee, ever, to carry 
 
            four blocks at a time?
 
            
 
               A.  Not eight inch block, no.
 
            
 
               Q.  Now, what is the fact so far as you are 
 
            concerned about whether one could carry four eight inch 
 
            blocks at a time on any kind of sustained basis?
 
            
 
               A.  Not sustained.  We have played around through 
 
            the years trying to prove points, et cetera, and it is 
 
            possible to pick up four block.  And I suppose it's 
 
            possible to carry them a short distance.  But that 
 
            would be the extent of it.  It would take a pretty good 
 
            size person to pick up that much weight and bulk and 
 
            move it any distance.
 
            
 
               Q.  Other than seeing somebody some time or other do 
 
            that to prove they could do it --
 
            
 
               A.  Uh-huh.
 
            
 
               Q.  -- have you ever seen anybody work on a job in 
 
            that manner?
 
            
 
               A.  No.
 
            
 
               Q.  And did you see anybody on the job that day 
 
            working in that manner?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  Now, I would like to read further from the same 
 
            deposition, and this time it is page 36, line 19.  "And 
 
            so I went up to the plank a couple times to carry four 
 
            blocks, two in each arm, and probably about the fourth, 
 
            fifth time when I was going up there, carried two 
 
            blocks in each arm, then I went down.  I twisted and I 
 
            heard something pop, and I couldn't move and lost my 
 
            balance and fell off the plank.  Then I landed there, 
 
            and I had tears in my eyes and looked straight up, and 
 
            Ron started yelling at me, and he said, either get up 
 
            or find a new job.  And I says, Ron, I'm in pain.  I 
 
            can't move.  Then it was 9:45, and he says, it's break 
 
            time.  And I says, Ron, I need to go to the hospital.  
 
            He says, there's nothing wrong with you.  You just 
 
            probably pulled a muscle.  You just got to deal with 
 
            it."
 
            
 
                  Now, did you see Paul at any time carrying four 
 
            blocks?
 

 
 
 
 
 
 
 
 
 
            
 
               A.  No, I did not.
 
            
 
               Q.  Did you see him at any time on a plank carrying 
 
            four blocks?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  Did you see him fall from a plank?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  And did you see him laying on the ground looking 
 
            straight up?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  And did you yell at him while he was laying on 
 
            the ground looking straight up?
 
            
 
               A.  No, I did not.
 
            
 
               Q.  Did he at any time during the day request to go 
 
            to the hospital?
 
            
 
               A.  No, he never asked me.
 
            
 
               Q.  Now, during the course of the day, did there 
 
            come a time when you and Paul got into a row?
 
            
 
               A.  Yes, there was.
 
            
 
                  . . . .
 
            
 
               Q.  Tell me about the argument and to its 
 
            conclusion?
 
            
 
               A.  We probably argued for a couple minutes, yelling 
 
            at each other.  I don't know how much time elapsed from 
 
            that particular point, but he grabbed his lunch box, 
 
            and as he was going by where I was working he yelled at 
 
            me and told me, he says, not quote, but he said I hope 
 
            somebody shoots you and puts you out of your misery.  
 
            He turned around and walked at a fast pace down the 
 
            driveway.  And that was the last I saw of him.
 
            
 
               Q.  Now, before he left did he tell you he was 
 
            leaving because he had been injured, or did he tell you 
 
            he had been injured on the job?
 
            
 
               A.  No, he did not.
 
            
 
               Q.  Or did he tell you that he was leaving because 
 
            his back hurt?
 
            
 
               A.  No, he did not.
 
            
 
               Q.  When you saw him walking down the drive, as far 
 
            as you could -- I'm sorry, that's about as leading a 
 
            question as you can get.  When you saw him going down 
 
            the drive, did you see any sign of any discomfort in 
 
            the way he walked or acted?
 
            
 
               A.  No, he walked out at a fast pace.  He looked 
 
            normal to me.
 
       
 

 
 
 
 
 
 
 
 
 
       (Transcript, pages 48-54)
 
            
 
            Next, Tracy Payne testified on behalf of his former 
 
       employer, the defendant.  He too was a disinterested witness.  
 
       Mr. Payne was also working on the same construction project on 
 
       the day in question.  He terminated his employment relationship 
 
       with defendant after the date of the alleged work injury.  Mr. 
 
       Payne worked until November of 1993.  Mr. Payne's testimony 
 
       corroborated the testimony of Mr. Dew.  Mr. Payne was a credible 
 
       witness.  Payne's testimony was quite different from the 
 
       testimony claimant had given in his first deposition.  
 
            
 
            During direct examination, Mr. Payne stated under oath:
 
            
 
               Q.  On May 22, 1990, what job were you working on?
 
            
 
               A.  I don't remember where it was.  It was an 
 
            addition on a house.  It was outside of town.  I don't 
 
            remember what town it was in.
 
            
 
               Q.  And what was the project that Gene Schmitz 
 
            Masonry was responsible for?  What were they supposed 
 
            to do?
 
            
 
               A.  The foundation of the addition.
 
            
 
               Q.  And then other contractors took over at that 
 
            point?
 
            
 
               A.  Yes.
 
            
 
               Q.  On May 22, what was the work being performed on 
 
            that day?
 
            
 
               A.  We were pouring the footing and laying the block 
 
            for the addition.
 
            
 
               Q.  During the course of the day, was Paul 
 
            Cunningham also working on the job?
 
            
 
               A.  Yes.
 
            
 
               Q.  And during the course of the day, did you at any 
 
            time see Mr. Cunningham sustain an injury on the job?
 
            
 
               A.  No.
 
            
 
               Q.  And at any time during the course of the day did 
 
            he tell you that he had sustained an injury on the job?
 
            
 
               A.  No.  He told me his back hurt.
 
            
 
               Q.  Now, I'm going to read to you from his 
 
            testimony, which is Exhibit 1, page 36 and line 7.  
 
            "And I went up there again, and Ron started yelling at 
 
            me, said some naughty things and stuff, and he says, if 
 
            you don't start picking up four blocks at a time, you 
 
            might as well find another job, because somebody like 
 
            you probably never worked hard your entire life."  Now, 
 
            the part I want to refer you to is the part about Ron 
 
            telling Paul to carry four blocks at a time.  In the 
 
            first place, Ron was the foreman, is that right?
 
            
 
               A.  Yes.
 
            
 
               Q.  At any point during that day, did you ever hear 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Ron tell Paul to carry four blocks at a time?
 
            
 
               A.  No.
 
            
 
               Q.  What kind of blocks were there that you were 
 
            working with that day?
 
            
 
               A.  They were 8 by 8 by 16 inches.
 
            
 
               Q.  And how much do those weigh, if you know?
 
            
 
               A.  Roughly 40 pounds.
 
            
 
               Q.  Did you hear Ron tell anybody to carry four 
 
            blocks at a time on that day?
 
            
 
               A.  No, I never have.
 
            
 
               Q.  Did you ever hear Ron tell anybody to carry four 
 
            blocks at a time on that day or any other day?
 
            
 
               A.  No.
 
            
 
               Q.  Do you believe it is -- well, have you carried a 
 
            lot of block in your career?
 
            
 
               A.  Yeah.
 
            
 
               Q.  Can four blocks at a time be carried on a 
 
            sustained basis?
 
            
 
               A.  Not for very long.  You could do it, but you're 
 
            asking for trouble.
 
            
 
               Q.  Have you ever known on any work site where 
 
            people have been as a matter of practice asked to carry 
 
            four blocks at a time?
 
            
 
               A.  No.
 
            
 
               Q.  For this employer or any other?
 
            
 
               A.  No.
 
            
 
               Q.  Let me now read you another part of the 
 
            testimony at page 36, line 19 of Exhibit 1.  Again  Mr. 
 
            Cunningham's testimony.  "And so I went up to the plank 
 
            a couple times to carry four blocks, two in each arm, 
 
            and probably about the fourth, fifth time when I was 
 
            going up there, carried two blocks in each arm, then I 
 
            went down.  I twisted and I heard something pop, and I 
 
            couldn't move and lost my balance and fell off the 
 
            plank.  Then I landed there, and I had tears in my eyes 
 
            and looked straight up, and Ron started yelling at me, 
 
            and he said, either get up or find a new job.  And I 
 
            says, Ron, I'm in pain.  I can't move.  Then it was 
 
            9:45, and he says, it's break time.  And I says, Ron, I 
 
            need to go to the hospital.  He says there is nothing 
 
            wrong with you.  You just probably pulled a muscle.  
 
            You just got to deal with it."
 
            
 
                  Now, let me ask you about the part that says "I 
 
            twisted and I heard something pop, and I couldn't move 
 
            and lost my balance and fell off the plank."  Did you 
 
            see that occur?
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
               A.  No.
 
            
 
               Q.  Did you at any time see Mr. Cunningham laying on 
 
            the ground looking up while Ron was yelling at him?
 
            
 
               A.  No, I didn't.
 
            
 
               Q.  During the course of the morning, did at some 
 
            point Paul and Ron get into a row about anything?
 
            
 
               A.  Yeah.
 
            
 
               Q.  Tell me what happened?
 
            
 
               A.  We were supposed to point the top two courses of 
 
            the addition that are above ground, and Ron told him to 
 
            do that.  And he was pointing below the ground.
 
            
 
               Q.  By he, do you mean Paul Cunningham?
 
            
 
               A.  Paul was, yeah.  And Ron said they don't have to 
 
            be pointed below the ground.  And he said nobody told 
 
            him that.  And Ron said he did tell him that.  And they 
 
            started arguing.
 
            
 
               Q.  Describe the argument?
 
            
 
               A.  That was pretty much all I really paid attention 
 
            to.
 
            
 
               Q.  Were they yelling at each other or were they 
 
            calm or what?
 
            
 
               A.  It wasn't very calm.
 
            
 
               Q.  Were either or both of them using profanity?
 
            
 
               A.  Yeah, if I remember right.
 
            
 
               Q.  Which one, or both?
 
            
 
               A.  I couldn't say for sure.  I just remember they 
 
            were yelling.
 
            
 
               Q.  Was it a loud argument?
 
            
 
               A.  Yeah, pretty loud.
 
            
 
               Q.  Angry?
 
            
 
               A.  (Nods yes.)
 
            
 
               Q.  How did it conclude?
 
            
 
               A.  I don't know if it was right after that or when        
 
            it was, but Paul ended up leaving.
 
            
 
               Q.  When Paul left, did you hear him say anything 
 
            about leaving because he had been injured, or leaving 
 
            because he wanted to go to the hospital?
 
            
 
               A.  Not that I remember.
 
       
 
       (Tr., pp. 77-82)
 
            
 
            Claimant told an entirely different version during his 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       rebuttal testimony.  Claimant testified:
 
            
 
               Q.  And did you first bring a load of concrete block 
 
            to the job site that morning?
 
            
 
               A.  Yes.
 
            
 
               Q.  And what did you do after you arrived?
 
            
 
               A.  Oh, I backed the truck up.  And there was a big 
 
            trench.  It kind of goes like this (indicating).  Ron 
 
            was right here (indicating).  Tracy was up here 
 
            (indicating).  And there was a plank going across.  
 
            Probably about as long as this table.  And I was 
 
            handing them to Tracy, and he was stacking them over 
 
            here (indicating).  Because Ron was here, and the 
 
            trench was here, and I was on this side (indicating).
 
            
 
               Q.  So you're saying that you were handing the 
 
            concrete blocks out to Tracy?
 
            
 
               A.  Yes.
 
            
 
               Q.  And you were handing them off after having 
 
            picked them up from the bed of the truck?
 
            
 
               A.  Right.
 
            
 
               Q.  And this is the flatbed sort of trailer truck we 
 
            have heard described here today?
 
            
 
               A.  Yeah, it's a big truck, yes.
 
            
 
               Q.  And how high off the ground is the bed of that 
 
            truck?
 
            
 
               A.  Well, the last time, in '90 it came up to about 
 
            right here on me (indicating).
 
            
 
               Q.  Are you indicating about a foot below your chin?
 
            
 
               A.  Yes.  It was a high truck.
 
            
 
               Q.  And how tall are you, sir?
 
            
 
               A.  Six foot.
 
            
 
               Q.  So approximately five feet high?
 
            
 
               A.  Yes.
 
            
 
               Q.  And so it was customary to use a plank to get               
 
            the loads off this vehicle?
 
            
 
               A.  Yes.
 
            
 
               Q.  And would you describe for us how you were 
 
            picking up the concrete blocks?
 
            
 
               A.  I was stacking them up on their side.  And I was 
 
            putting two here and two here (indicating), when Ron 
 
            was yelling at me.  And I was --
 
            
 
               Q.  Now permit me to ask you, when you say two here 
 
            and two here, you mean two separate concrete blocks?
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
               A.  Yes.
 
            
 
               Q.  And each of the concrete blocks would be                    
 
            vertical?
 
            
 
               A.  Yes.
 
            
 
               Q.  And each of those concrete blocks had holes in         
 
            them?
 
            
 
               A.  Right.
 
            
 
               Q.  Two sets of holes?
 
            
 
               A.  Yes.
 
            
 
               Q. So depending on what side you were of these 
 
            vertical concrete blocks, on two sides you could look 
 
            through and see through the holes?
 
            
 
               A.  Right.
 
            
 
               Q.  Okay.  And you had two vertical piles of them?
 
            
 
               A.  Yes.
 
            
 
               Q.  And then what did you do?
 
            
 
               A.  I picked them up.
 
            
 
               Q.  And how would you do that?
 
            
 
               A.  I went like this and put the blocks two on each 
 
            arm (indicating), and I carried them like this down the 
 
            plank.
 
            
 
               Q.  So when you say you went like this, since we 
 
            don't have a camera here, that means that you were 
 
            sticking your left and your right arm through the top 
 
            holes of each of the two blocks on either side?
 
            
 
               A.  Yes.
 
            
 
               Q.  And then what would you do?
 
            
 
               A.  And I walked down the plank off the truck and 
 
            handed them to Tracy across the gutter or whatever you 
 
            call that.
 
            
 
                  DEPUTY COMMISSIONER:  Across the what, sir?
 
            
 
               A.  Gutter or the trench.
 
            
 
               Q.  And did you set them down when you were doing              
 
            this?
 
            
 
               A.  Yes, I set them down like this (indicating).  
 
            And then they will stack on top of each other.
 
            
 
               Q.  Then Tracy will take them from there?
 
            
 
               A.  I will hand them to him one at a time.
 
            
 
               Q.  And in the course of doing that that day, did 
 
            anything -- what happened to you that hurt you?
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
               A.  Well, that morning, it was a quarter to 10, it 
 
            was sprinkling that morning, and it was muddy out there 
 
            when I arrived with the truck, and I was going up there 
 
            -- it must have been about 75 to a hundred blocks left 
 
            to unload.  And I walked up there, grabbed two more, 
 
            walked down, got halfway, the right foot was on the bed 
 
            and the left foot was on the plank, and I twisted.  It 
 
            popped.  I heard it pop.  I couldn't move.  I fell off 
 
            the truck.  And I asked Ron to come over here to help 
 
            me.
 
            
 
               Q.  Now, where was Ron at that time?
 
            
 
               A.  He was inside the gutter or that trench.
 
       
 
       (Tr., pp. 151 to 155)
 
            
 
            During cross-examination, defendants' counsel questioned 
 
       claimant concerning any explanation for the difference in the 
 
       testimonies of the witnesses.   Claimant could provide no 
 
       reasonable explanation for the discrepancies.  Mr. Dew and Mr. 
 
       Payne had no motivations for speaking anything but the truth 
 
       (Tr., p. 170).  Claimant was not a credible witness.  His 
 
       testimony did not instill confidence in his ability to tell the 
 
       truth.  He was not believable.
 
            
 
            Claimant has not proven that he sustained a work related 
 
       injury on or about May 22, 1990.
 
            
 
            Although there are medical opinions which casually connect 
 
       claimant's condition to the alleged work injury, the opinions are 
 
       not persuasive.  As a general rule, expert testimony, even if 
 
       uncontroverted, may be accepted or rejected in whole or in part 
 
       by the trier of fact.  Lithcote Co. v. Ballenger, 471 N.W.2d, 64, 
 
       66 (Iowa App. 1991).  The fact finder may not arbitrarily or 
 
       totally reject the offered testimony but has the duty to weigh 
 
       such evidence and credibility determinations.  Catalfo v. 
 
       Firestone Tire & Rubber Co., 213 N.W.2d 506, 509 (1973).  "When 
 
       an expert's opinion is based on an incomplete history it is not 
 
       necessarily binding on the commission or on the court."  
 
       Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128, 
 
       133 (1967).
 
            
 
            In the instant case, the opinion of Dr. Delbridge regarding 
 
       the cause of claimant's injury was based on the history which 
 
       claimant verbalized to the surgeon.  Dr. Delbridge causally 
 
       related claimant's condition to the work injury.  However, Dr. 
 
       Delbridge did not have a complete history of claimant.  
 
       Therefore, this deputy does not accord any weight to Dr. 
 
       Delbridge's opinion.
 
            
 
            Claimant failed to prove that he had sustained any injury 
 
       which arose out of and in the course of his employment.  Since, 
 
       claimant failed to meet his burden of proof, claimant is not 
 
       entitled to benefits pursuant to the Iowa Workers' Compensation 
 
       laws.
 
       
 
                                ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            
 
            Claimant takes nothing further from these proceedings.
 
            
 
            Costs are assessed to claimant pursuant to rule 343 IAC 
 
       4.33.
 
       
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
       
 
          Signed and filed this ____ day of May, 1995.
 
       
 
       
 
       
 
       
 
           
 
                            ______________________________          
 
                            MICHELLE A. McGOVERN
 
                            DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. W. H. Gilliam
 
       Attorney at Law
 
       722 Water St
 
       Waterloo  IA  50703
 
       
 
       Mr. Roger L. Ferris
 
       Attorney at Law
 
       1900 Hub Tower
 
       Des Moines  IA  50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            1400; 1402; 2600
 
                                            Filed May 11, 1995
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
         PAUL CUNNINGHAM,    
 
               
 
          Claimant, 
 
               
 
         vs.        
 
                                             File No. 951767
 
         JAMES SCHMITZ MASONARY a/k/a,  
 
         GENE SCHMITZ,   
 
                                          A R B I T R A T I O N
 
          Employer, 
 
                                             D E C I S I O N
 
         and        
 
               
 
         HERITAGE INSURANCE, 
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ___________________________________________________________
 
         1400; 1402; 2600
 
           
 
           Claimant was unable to prove by a preponderance of the 
 
         evidence that he had sustained a work-related injury.  
 
         Claimant was not a credible witness.  He made many 
 
         inconsistent statements when describing the alleged work 
 
         injury.  There were three people on the job site on the date 
 
         in question.  The other two employees did not witness the 
 
         alleged injury.  Claimant could provide no explanation for 
 
         the discrepancies in the testimonies.
 
           
 
           Additionally, defendants conducted surveillance on the 
 
         claimant.  The events depicted on three videotapes were 
 
         quite different from the events which claimant was 
 
         describing.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELMER J. LATHROP,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 959330
 
                                          :                   951789
 
            ABILD CONSTRUCTION,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petitions 
 
            of claimant, Elmer Lathrop, against his employer, Abild 
 
            Construction Company, and its insurance carrier, Aetna 
 
            Insurance Company, defendants.  The cases were heard on 
 
            March 9, 1992, at the Linn County Courthouse in Cedar 
 
            Rapids, Iowa.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimony of John 
 
            W. Hughes, vocational rehabilitation counselor with the Iowa 
 
            State Department of Vocational Rehabilitation; the testimony 
 
            of Leon Wurzer, ironworker, foreman; and Judith M. Stengel, 
 
            certified rehabilitation counselor.  Additionally, the 
 
            record consists of the following exhibits:  claimant's 
 
            exhibits 1-10, 12 and 14 and defendants' exhibits, pages 
 
            1-41.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:
 
            
 
                 For file number 959330, July 3, 1990 -
 
            
 
                 1) whether claimant sustained an injury which arose out 
 
            of and in the course of her employment; 2) whether there is 
 
            a causal relationship between the alleged injury and any 
 
            temporary or permanent disability; 3) whether claimant is 
 
            entitled to any healing period or permanent partial 
 
            disability benefits; and 4) whether claimant is entitled to 
 
            any medical benefits pursuant to section 85.27.
 
            
 
                 For file number 951789, May 29, 1990 - 
 
            
 
                 1) whether claimant is entitled to any healing period 
 
            or permanent partial disability benefits; and 2) whether 
 
            claimant is entitled to any medical benefits pursuant to 
 
            section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is a 52-year-old married man.  Claimant 
 
            completed the sixth grade in school.  He held various odd 
 
            jobs until he entered the United States Army.  While in the 
 
            army, claimant worked as a heavy equipment operator.  Only 
 
            months ago did claimant obtain a GED.
 
            
 
                 After his tour of duty, claimant entered the 
 
            construction industry as an ironworker.  As of May 29, 1990, 
 
            claimant had been an ironworker for nearly 30 years.
 
            
 
                 Claimant's duties as an ironworker included climbing, 
 
            stooping, crawling, lifting and carrying equipment.  
 
            Additionally, claimant engaged in operating two speed 
 
            wrenches, large hammers, bolts and pins.  Much of the work 
 
            required claimant to lift and carry from 50 to 120 pounds.  
 
            He even had to engage in overhead work.  Most of the work 
 
            was performed outdoors.
 
            
 
                 At the time of the alleged injuries, claimant was 
 
            earning $15.83 per hour, plus pension, and health and 
 
            welfare benefits.
 
            
 
                 With respect to the injury date of May 29, 1990, 
 
            claimant had engaged in extremely heavy lifting.  He, with 
 
            the assistance of co-workers, engaged in lifting in excess 
 
            of 300 pounds.  Claimant testified he experienced back pain 
 
            which progressively worsened over the course of several 
 
            days.  He sought treatment for low back pain on June 4, 
 
            1990.  The hospital records reflect that:  "Lifting weight @ 
 
            work May 28, low back pain & stiffness since L>R..." 
 
            (Exhibit 7).  Claimant was referred to John S. Koch, M.D., 
 
            by his employer.  Again claimant complained of low back 
 
            pain.  Dr. Koch diagnosed claimant's condition as 
 
            "degenerative arthrosis of the lumbosacral area of the back 
 
            with associated strain."  (Ex. 2, page 003)
 
            
 
                 Claimant returned to Mercy Care North for several more 
 
            visits concerning his low back pain.  He was off work from 
 
            June 3, 1990 through June 24, 1990.  Claimant returned to 
 
            work on June 25, 1990.  He worked through July 3, 1990.  
 
            However, claimant testified that on July 2, 1990 and July 3, 
 
            1990, he was required to unload windows from the back of a 
 
            truck as well as lift and carry pallets.  Claimant testified 
 
            he again experienced difficulties in his lower back.
 
            
 
                 On July 6, 1990, claimant sought medical attention from 
 
            Mercy Care North.  The notes for that day reflect complaints 
 
            of low back pain.
 
            
 
                 On July 13, 1990, claimant returned to Dr. Koch because 
 
            of an "acute exacerbation of back pain after a therapy 
 
            treatment earlier this week at Mercy Care North."  (Ex. 2, 
 
            page 003).  Dr. Koch diagnosed claimant's condition as 
 
            "[a]cute exacerbation of degenerative disc disease of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            lumbar spine."  (Ex. 2, p. 004)
 
            
 
                 Later Dr. Koch modified his diagnosis to "an 
 
            aggravation of degenerative changes related to his work 
 
            activities."  (Ex. 2, p. 004).
 
            
 
                 Claimant remained off work.  Then on August 9, 1990, he 
 
            was involved in an automobile accident which was unrelated 
 
            to his work activities.  The day following the automobile 
 
            accident, claimant treated with Lawrence C. Strathman, M.D.  
 
            Office notes for August 10th reveal that:
 
            
 
                 10 Aug 90:  Elmer Lathrop comes in today stating 
 
                 that he was involved in a motor vehicle accident 
 
                 yesterday.  This occurred at E Avenue and Third 
 
                 Street N.W.  He was hit by another car and the van 
 
                 he was driving was turned around in the street.  
 
                 He was not thrown out.  A couple hours after the 
 
                 accident, he began to develop neck pain, which got 
 
                 worse through the night and then this morning he 
 
                 is also aware of increased soreness in his low 
 
                 back.  He tells me that he has some numbness in 
 
                 both hands, more of a burning sensation, more on 
 
                 the left than on the right.  This is more 
 
                 localized over the dorsum of the hand.  He is not 
 
                 having pain into his arms.  He has not been aware 
 
                 of weakness.  The pain in his neck is posteriorly.
 
            
 
                 On exam, there is no spasm, but there is decreased 
 
                 motion.  Flexes the chin onto the chest.  Extends 
 
                 a little beyond neutral.  Rotation about 40o to 
 
                 either side.  He can barely tilt the ear to the 
 
                 ipsilateral shoulder.  There is tenderness to 
 
                 palpation over the entire posterior cervical area 
 
                 extending into the cervical dorsal area.  Scapular 
 
                 and shoulder motion is not restricted or painful.  
 
                 Upper extremity strength is symmetric throughout.  
 
                 Reflexes are intact, biceps, triceps, and radial.  
 
                 There is no focal or radicular sensory change.  
 
                 Low back is markedly restricted in all perimeters.  
 
                 His reflexes, however, are 2+ at the knee and 
 
                 ankle.  There is some hamstring tightness at 110o.  
 
                 Hip rotation is not painful.  Lower extremity 
 
                 strength is symmetrical and no definite sensory 
 
                 loss is detected.
 
            
 
                 Elmer Lathrop's x-rays show significant 
 
                 degenerative changes at 4-5 and 5-6.  No evidence 
 
                 of acute injuries.  It appears that there is 
 
                 aggravation of his degenerative problem and we are 
 
                 putting him in a cervical collar, Motrin, and 
 
                 Restoril at bedtime.  We should check him in a 
 
                 couple of weeks.  (Lawrence C. Strathman, 
 
                 M.D.)(RN)tls
 
            
 
            (Ex. 2, p. 007)
 
            
 
                 Claimant continued treatment with Dr. Koch at the Iowa 
 
            Medical Clinic, P.C.  An MRI was conducted which indicated 
 
            "significant cervical spinal stenosis most pronounced at the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            C4-5, C5-6 and C6-7 level."  (Ex. 2, p. 009)
 
            
 
                 Claimant was referred to William Roberts, M.D., for a 
 
            second opinion.  Dr. Roberts performed a "[p]osterior 
 
            foraminotomy at the C5-C6 level with opening door 
 
            laminoplasty from C4 through C6 with cervical fusion from C4 
 
            to C6."  (Ex. 1, p. 002)
 
            
 
                 Subsequent to his surgery claimant participated in voca
 
            tional rehabilitation at the Iowa State Department of 
 
            Vocational Rehabilitation.  Claimant attended a class in 
 
            welding at Kirkwood Community College.  However, he 
 
            testified he discontinued the class because of back pain.  
 
            Claimant did obtain his GED.
 
            
 
                 Other than to report to the union hall, claimant had 
 
            made no job applications after July 3, 1990.  He did receive 
 
            unemployment benefits pursuant to the decision dated April 
 
            5, 1991, of Jerome H. Roberson, Administrative Law Judge.  
 
            At the time of the hearing, claimant was unemployed.  He was 
 
            considering enrolling in a course of study for the position 
 
            of dental lab technician.
 
            
 
                                conclusions of law
 
            
 
                 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.  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, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            compensation law means an injury, the iexperienced low back pain on 
 
            July 2, 1990 or July 3, 1990, when he was unloading windows 
 
            from a truck.  This is consistent with the activity claimant 
 
            reported to the medical provider on July 6, 1990.  Then 
 
            there is the testimony of Leon Wurzer, claimant's foreman 
 
            from June 25, 1990 through July 3, 1990.  Mr. Wurzer tes
 
            tified that claimant did verbally report a work injury to 
 
            him.  Claimant's version of the incidents leading up to his 
 
            back pain is credible.  The other evidence corroborates 
 
            claimant's testimony.  Claimant has proven that he had 
 
            sustained a work-related injury on July 3, 1990, and that 
 
            the injury involved claimant's lower back.
 
            
 
                 The next issue to address is whether the two work 
 
            injuries are causally related to claimant's alleged 
 
            condition.  The parties stipulated that the May 29, 1990 
 
            injury caused both temporary and permanent disability.  An 
 
            issue remains with respect to the July 3, 1990 injury.  The 
 
            undersigned determines that the July 3, 1990 injury is 
 
            causally related to claimant's low back condition.  
 
            Claimant's already aggravated low back condition was further 
 
            aggravated by the lifting incident on July 3, 1990.  
 
            Claimant reported that his lower back felt worse after he 
 
            unloaded heavy windows (Ex. 7, p. 003).  Claimant was placed 
 
            in physical therapy following the July 3, 1990 work injury.  
 
            His treating physician, Dr. Koch, opined that claimant had 
 
            sustained "[a]cute exacerbation of degenerative disc disease 
 
            of the lumbar spine."  (Ex. 2, p. 004)  Dr. Koch deemed "the 
 
            aggravation of degenerative changes" related to his work 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            activities.  (Ex. 2, p. 004)  Medication was prescribed.  
 
            Claimant was not released to return to work (Ex. 2, p. 005).  
 
            It is clear to this deputy that the July 3, 1990 work injury 
 
            was causally connected to claimant's low back injury.
 
            
 
                 However, it is equally clear to the undersigned that 
 
            claimant's cervical condition is not related to any 
 
            work-related injury.  Rather claimant's cervical condition 
 
            is related to claimant's degenerative arthrosis, as well as 
 
            to the motor vehicle accident which claimant sustained on 
 
            August 9, 1990.  Prior to the motor vehicle accident, 
 
            claimant reported absolutely no problems with his neck, 
 
            shoulders, or upper extremities.  Even claimant's treating 
 
            physician wrote to defendant-insurance carrier:  "I have no 
 
            record or knowledge of any neck difficulty or injury to Mr. 
 
            Lathrop's neck prior to a car accident of August 1990."  
 
            (Ex. 2, p. 012).
 
            Additionally, there is another report from the treating 
 
            orthopedic surgeon, Dr. Roberts.  He writes in his report of 
 
            November 26, 1990:  "The patient's cervical stenosis is not 
 
            related to an occupational injury of the lumbar spine.  By 
 
            this I mean, the development of his cervical stenosis is not 
 
            occupationally related to the development of his lumbar 
 
            spinal stenosis."  (Defendants' Ex. 5, p. 37)
 
            
 
                 Claimant's cervical spine condition is totally 
 
            unrelated to the work injuries in question.  Likewise, the 
 
            motor vehicle accident only temporarily aggravated 
 
            claimant's low back condition.  Claimant's low back 
 
            condition is degenerative and aggravated by claimant's work.  
 
            Dr. Roberts testified by deposition that the motor vehicle 
 
            accident did not have an impact upon claimant's employment.  
 
            (Ex. 12, p. 23, lines 17-21).  Therefore, it is the 
 
            determination of the undersigned that had the motor vehicle 
 
            accident not occurred, claimant would have been able to 
 
            return to work from the July 3, 1990 work injury on 
 
            September 1, 1990.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            App. 1981).  Healing period benefits can be interrupted or 
 
            intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 Healing period benefits are awarded for the May 29, 
 
            1990 work injury for the period from June 4, 1990 through 
 
            June 24, 1990, at the stipulated rate of $380.66 per week.  
 
            With reference to the July 3, 1990 work injury, claimant is 
 
            entitled to healing period benefits from June 6, 1990 
 
            through August 31, 1990.
 
            
 
                 The next issue to address is the nature and extent of 
 
            claimant's permanent partial disability.  Claimant argues 
 
            that he has sustained an industrial disability.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 
 
            660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Peterson v. 
 
            Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
            1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
            26, 1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Koch, a treating orthopedic specialist, opines that 
 
            claimant has an eight percent permanent impairment as a 
 
            result of the work injury on May 29, 1990.  (Def. Ex. 6, p. 
 
            39)  He equates most of claimant's condition to the work 
 
            injury of May 29, 1990.  (Def. Ex. 6, p. 38)  After the May 
 
            29, 1990 work injury, claimant made a good faith effort to 
 
            return to work as an ironworker.  Claimant performed the 
 
            duties assigned to him by his superiors.  However, claimant 
 
            reinjured himself on July 3, 1990.  After that date, his 
 
            physicians opined claimant would be unable to return to the 
 
            ironwork trade.  Dr. Roberts then referred claimant to the 
 
            Iowa State Department of Vocational Rehabilitation.  
 
            Claimant has made a sincere effort to rehabilitate himself.  
 
            He has obtained his GED.  He has unsuccessfully attempted a 
 
            welding course which he entered.  He is seeking information 
 
            in the dental lab field.  Claimant appears motivated.  His 
 
            counselor, John Hughes, has testified that claimant has 
 
            encountered some academic
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            challenges, but that claimant has a good chance of 
 
            completing the program.  Claimant is to be commended as well 
 
            as encouraged.
 
            
 
                 Claimant's age is a negative factor.  He is 52 years 
 
            old.  He does not have many more years before he reaches 
 
            retirement age.  Claimant has always worked in heavy labor 
 
            jobs which require physical strength.  He has earned as much 
 
            as $16.58 per hour.  Now he is unable to work in this 
 
            classification of the labor market.  He is not capable of 
 
            earning the same rate of pay.
 
            
 
                 While Judith M. Stengel, a certified insurance 
 
            rehabilitation specialist, has testified that claimant's 
 
            access to the labor market has only been reduced by 14 
 
            percent, her testimony is discounted.  Ms. Stengel had never 
 
            met claimant.  Nor had she talked with claimant prior to the 
 
            hearing.  All she did was write a vocational assessment.  
 
            She did not attempt placement.  Ms. Stengel is less credible 
 
            than her counter-person, John Hughes, who has involved 
 
            claimant in retraining programs.  Ms. Stengel's testimony is 
 
            not accorded much weight.
 
            
 
                 Finally there are the physical restrictions placed upon 
 
            claimant because of his low back injury.  The restrictions 
 
            attributable to the two work injuries are:
 
            
 
                 C.  Return to Work:
 
            
 
                     The following weight and activity restrictions 
 
                 are   based on the findings of the FCA:
 
            
 
                     1.  Weight carry at waist level for 5 foot                      
 
                 distances - 45 feet on an occasional basis
 
                2.  Weight carry at waist level up to 100 feet 
 
            on           an infrequent basis - 45 lbs.
 
                  3.  Floor to waist lifting on an occasional 
 
            basis -           25 lbs.
 
                4.  Waist to overhead lift on an infrequent 
 
            basis -           25 lbs.
 
                  5.  Waist to shoulder lift on an infrequent 
 
            basis -        25 lbs.
 
                  6.  Pushing and pulling should require no more 
 
            than         82 lbs. of force to initiate 
 
            movement of an                   object and 77 
 
            lbs. of force to sustain movement
 
            
 
                     ...
 
            
 
                     9.  Squatting should only be done occasionally
 
            
 
            (Ex. 9, pp. 006 - 007)
 
            
 
                 In light of the foregoing, and in light of the personal 
 
            observation of claimant, it is the determination of the 
 
            undersigned that claimant has a 60 percent permanent partial 
 
            disability.  It is also the determination of the undersigned 
 
            that the permanent partial disability is allocated to the 
 
            injury of May 29, 1990, as detailed in defendants' exhibit 
 
            6, page 38.  Claimant is entitled to 300 weeks of permanent 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            partial disability benefits at the stipulated rate of 
 
            $380.66 and commencing on September 1, 1990, the date Dr. 
 
            Koch determined claimant could have returned to work if he 
 
            had not been involved in the motor vehicle accident.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to certain medical benefits pursuant to section 
 
            85.27.  Any treatment for the cervical stenosis is not 
 
            causally connected to either work injury.  Therefore, 
 
            medical bills incurred for the neck, shoulders, or upper 
 
            extremities are not compensable under section 85.27.  The 
 
            medical bills submitted in exhibit 10 are all related to the 
 
            cervical spine.  They are not causally connected to the work 
 
            injury.  Defendants are not liable for the expenses 
 
            requested in exhibit 10.
 
            
 
                                      order
 
            
 
                 With reference to file number 951789, defendants are 
 
            liable for healing period benefits at the stipulated rate of 
 
            three hundred eighty and 66/l00 dollars ($380.66) per week 
 
            for three (3) weeks for the period from June 4, 1990 through 
 
            June 24, 1990.
 
            
 
                 With reference to file number 951789, defendants are to 
 
            pay unto claimant three hundred (300) weeks of permanent 
 
            partial disability benefits at the stipulated rate of three 
 
            hundred eighty and 66/l00 dollars ($380.66) per week 
 
            commencing on September 1, 1990.
 
            
 
                 With reference to file number 959330, defendants are to 
 
            pay unto claimant temporary benefits from July 6, 1990 
 
            through August 31, 1990, at the stipulated rate of three 
 
            hundred eighty and 66/l00 dollars ($380.66) per week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.l.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jack C. Paige
 
            Mr. James W. Affeldt
 
            Attorneys at Law
 
            700 Higley Building
 
            P O Box 1968
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed April 23, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELMER J. LATHROP,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 959330
 
                                          :                   951789
 
            ABILD CONSTRUCTION,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant was a 52-year-old ironworker who injured his back 
 
            while working.  Claimant was determined to have a 60 percent 
 
            permanent partial disability.  Claimant was highly 
 
            motivated.  He obtained a GED in the recent past.  He had 
 
            looked into additional training.  He had participated in 
 
            vocational rehabilitation.  Claimant was precluded from 
 
            returning to the job of an ironworker.  He was preparing to 
 
            enter a course for dental lab work.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            CHAD E. PRESTHUS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 952215
 
            BARCO INC. a/k/a BARCO     
 
            MANUFACTURING,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            HERITAGE 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 25, 1992 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            Claimant urges that payments of permanent partial disability 
 
            should not be suspended during periods when claimant was 
 
            receiving temporary partial disability.  Under claimant's 
 
            interpretation, claimant would receive double payments 
 
            during the weeks in question.  There is no statutory 
 
            authority for this approach and the concept of double 
 
            payments contradicts the workers' compensation statutes.  
 
            Although the alleged bases for imposition of a penalty under 
 
            Iowa Code section 86.13 were not individually addressed in 
 
            the arbitration decision, the relevant conduct of the 
 
            employer was analyzed and it is determined that the conduct 
 
            does not warrant imposition of a penalty.  The alleged 
 
            misconduct consisted primarily of late payments of certain 
 
            benefits.  It is determined that the delays in payments were 
 
            not so substantial as to require imposition of a penalty.
 
            Claimant also raises as an appeal issue when defendants are 
 
            entitled to credit for payments made to claimant, which in 
 
            turn affects the computation of interest due to claimant 
 
            under Iowa Code section 85.30.  Defendants in their appeal 
 
            brief accede to claimant's interpretation that credit for 
 
            payment would begin on the date the payments were received 
 
            by claimant.  
 
            Claimant offered lay testimony that his disability extended 
 

 
            
 
            Page   2
 
            
 
            
 
            beyond the arm and into the body as a whole.  As a general 
 
            rule, pain alone does not extend an injury from a scheduled 
 
            member into the body as a whole.  In addition, claimant's 
 
            lay witnesses were contradicted by the greater weight of the 
 
            medical evidence, which indicated that the injury was 
 
            confined to the arm.  Greater weight will be given to the 
 
            medical evidence.  Claimant's injury does not extend to the 
 
            body as a whole.  
 
            Claimant received an award of benefits through the 
 
            arbitration decision.  Claimant has sought a review of that 
 
            award through the appeal process.  It is appropriate that 
 
            the defendants pay the costs of the arbitration action, and 
 
            claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 
            
 
            Mr. Eldon J. Winkel
 
            Attorney at Law
 
            P.O. Box 266
 
            Algona, Iowa 50511
 
            
 
 
         
 
 
 
 
 
                                 1100; 1108; 1803; 1808; 2209; 3002
 
                                 1802; 5-1801.1; 3800; 4000; 1803.1;
 
                                 2203
 
                                 Filed November 30, 1993
 
                                 Byron K. Orton
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         CHAD E. PRESTHUS,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 952215
 
         BARCO INC. a/k/a BARCO     
 
         MANUFACTURING,   
 
                                                    A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         HERITAGE INSURANCE COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         1100; 1108; 1803; 2209; 1808; 3002
 
         Found claimant incurred a work-related simultaneous bilateral, 
 
         upper extremity, cumulative injury on April 20, 1990, which 
 
         caused claimant to incur 25 weeks of permanent partial disability 
 
         benefits under 85.34(2)(s) at a rate found to be $180.36.
 
         
 
         1802; 5-1801.1; 3800
 
         Claimant awarded two healing periods.  Claimant awarded $317.22 
 
         of permanent partial disability benefits.  Claimant awarded 
 
         interest.  Parties disputed when and what was due.
 
         
 
         4000
 
         Claimant was not awarded 86.13 penalty benefits.
 
         
 
         1803.1
 
         Found claimant did not incur an industrial disability.  He did 
 
         not injure his shoulders and did not incur a body as a whole 
 
         injury.
 
         
 
         2203
 
         Found claimant did not incur an occupational disease and cited 
 
         agency precedents in this area.
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHAD E. PRESTHUS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 952215
 
            BARCO INC. a/k/a BARCO,       :
 
            MANUFACTURING,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            HERITAGE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 6, 1992, at 
 
            Fort Dodge, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits and compensation as a result of an 
 
            alleged injury or an occupational disease that occurred on 
 
            April 20, 1990.  The record in the proceeding consists of 
 
            the testimony of the claimant, Beverly Carter, Wayne Tietz, 
 
            Carla Fraker, Harry Fraker, and Dave Schultz; claimant's 
 
            exhibits A and B; and joint exhibit 1.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 Regarding occupational disease, the issues are:
 
            
 
                 1.  Whether an occupational disease arose out of and in 
 
            the course of claimant's employment on April 20, 1990;
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's alleged disability and the alleged occupational 
 
            disease;
 
            
 
                 3.  The nature and extent of any permanent partial 
 
            disability and entitlement to disability benefits resulting 
 
            from an alleged occupational disease;
 
            
 
                 4.  The rate at which any compensation would be paid;
 
            
 
                 5.  Whether claimant is entitled to 86.13 penalty 
 
            benefits;
 
            
 
                 6.  The amount of interest that may be due claimant , 
 
            and the extent of credit that defendants are entitled to; 
 
            and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 7.  Whether claimant has failed to mitigate the extent 
 
            of any damages claimant may have otherwise been entitled to.
 
            
 
                 Regarding the alleged scheduled member cumulative 
 
            injury or body as a whole injury;
 
            
 
                 1.  Causal connection as to claimant's alleged injury 
 
            and any permanency;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits, if any;
 
            
 
                 3.  The rate at which any benefits would be paid;
 
            
 
                 4.  The amount of interest that may be due claimant, 
 
            and the extent of credit that defendants are entitled to; 
 
            and,
 
            
 
                 5.  Whether claimant has failed to mitigate the extent 
 
            of any damages claimant may have otherwise been entitled to.
 
            
 
                 The parties were admonished as to the non-use of the 
 
            agency's prehearing report and order form.  They used their 
 
            own prehearing report form.  The undersigned understands 
 
            that the report filed was at the insistence of claimant's 
 
            attorney and that defendants desired to use the form used by 
 
            the agency and recognized as the form to be used.  The 
 
            undersigned indicated that he no longer wanted from the 
 
            claimant any prehearing reports and orders that are on the 
 
            claimant's form but that any form to be used in the future, 
 
            at least as to this undersigned hearing any case, must be on 
 
            the agency's form.  The agency form was prepared and adopted 
 
            by the agency for a reason.  It is easier to follow, and is 
 
            one that the agency and deputy is used to.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is approximately 20 years old and began 
 
            working for the defendant employer in July or August 1989.  
 
            His hourly wage when he last worked was $6.55.  Claimant 
 
            completed the ninth grade and has started to obtain his GED 
 
            but has not yet obtained it.  He hopes to finish it this 
 
            year.
 
            
 
                 Claimant testified that he did manual labor jobs prior 
 
            to beginning work for defendant employer.  Claimant said he 
 
            was in good health and was strong athletically before he 
 
            began working for defendant employer.  He indicated he had 
 
            done remodeling work and had no trouble.  He indicated that 
 
            after he began work with Barco, his health changed and he 
 
            had numbness in his hands and fingers that went into his 
 
            arms and shoulders.  He indicated this pain or numbness did 
 
            not go away even on the weekends.  He indicated he didn't 
 
            have the pain in the shoulders all the time, just once in 
 
            awhile.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant said lifting his arms above his head causes 
 
            his shoulder to hurt.  Claimant had surgery and the doctor 
 
            then released him to work on July 2, 1991, but claimant 
 
            didn't go to work as he indicates defendant employer told 
 
            him to go to S.A. Mueller, D.C.
 
            
 
                 Claimant testified he returned to work on July 5 and 
 
            worked two hours on and two hours off.  His testimony was 
 
            very incomplete in this area.
 
            
 
                 Claimant was treated by Dr. Mueller for one to two 
 
            months and indicated he got relief and felt good until he 
 
            returned to work.  He was given splints, braces and pills 
 
            but said his hands were still swelling so he stopped using 
 
            the braces and splints.
 
            
 
                 Claimant returned to full-time duty on August 1, 1990, 
 
            but eventually became worse.  He indicated his hands would 
 
            fall asleep and his shoulders would hurt.  Claimant said his 
 
            boss had him go back to Dr. Mueller again on October 30, 
 
            1990.  Claimant said he then saw another doctor, David A. 
 
            Carlyle, M.D., who then referred him to Michael W. Crane, 
 
            M.D., and Rajinder K. Verma, M.D.
 
            
 
                 Claimant said he was then prescribed work hardening but 
 
            had trouble getting to the facility because of illness and 
 
            no money for gas, but indicated he tried.
 
            
 
                 Claimant said he quit work with defendant employer on 
 
            November 5, 1990, and never returned.
 
            
 
                 Claimant said he was released by Dr. Crane on March 8, 
 
            1991, and looked for work.  Claimant began working for a 
 
            construction company on September 11, 1991, at $6 per hour 
 
            and worked for two or three months.  He said he voluntarily 
 
            quit this construction job because he was involved in a 
 
            motorcycle accident around October 11, 1991.  In that 
 
            accident, he incurred a broken arm between the left elbow 
 
            and mid forearm.  He also received scrapes and scratches.  
 
            Claimant said he had a different type of pain than he had 
 
            before but it has gone away now.  He also acknowledged that 
 
            he has some back and neck aches that still come and go.  
 
            Claimant said he was in a motor vehicle accident when he was 
 
            16 and hurt his low back and still has back problems today 
 
            but not as bad as when he was 16.  Claimant said the doctors 
 
            didn't recommend any different kind of work because of the 
 
            auto or motorcycle accidents.
 
            
 
                 Claimant then worked part-time for Quality Home Care at 
 
            minimum wage.  He didn't indicate when this work occurred 
 
            but it was before he began working for a Chevrolet company 
 
            in May of 1992 at $4.65 per hour.  Claimant said this job 
 
            was less repetitious but he was still having problems.  
 
            Claimant contends he always has pain in his hands, arms and 
 
            shoulders up to the top of his neck muscle.  Claimant 
 
            indicated that his main job with defendant employer was 
 
            stapling but he did ask for different jobs after his injury.
 
            
 
                 Claimant was asked concerning his deposition testimony 
 
            in which he indicated he ran one to two miles per day before 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            his alleged injury with defendant employer and left the 
 
            impression he can't run at the time of his deposition.  
 
            Claimant then testified at the hearing that he can run one 
 
            to two miles per day now.  Claimant indicated he doesn't 
 
            take any kind of medication, prescription or 
 
            non-prescription.  He disagreed with Dr. Crane's 5 percent 
 
            and 3 percent impairments and doesn't recall anyone else 
 
            rating him.
 
            
 
                 Carla Fraker, claimant's mother, testified that her son 
 
            has lived with her off and on and came back again in 
 
            December of 1990 because his house burned down.  She 
 
            testified as to the excuse of why claimant wasn't able to go 
 
            the work hardening program.  She said the excuse was mainly 
 
            because there was no other vehicle available to the 
 
            claimant.  She indicated there was only one vehicle in the 
 
            family and that was an old car.
 
            
 
                 She said claimant's health was excellent and he had no 
 
            problems with his hands, arms or shoulders prior to working 
 
            for the defendant employer and that he was very muscular.
 
            
 
                 She indicated that when claimant began working for 
 
            defendant employer and was no longer living in his house the 
 
            first part of 1990, she would still have contact with him 
 
            every day and she noticed his health changing regarding the 
 
            use of his wrists.  She indicated he would sit and shake his 
 
            hands and they would go to sleep and he would have to 
 
            stretch them out.  She said that since he left defendant 
 
            employer in November of 1990, he is still exhibiting these 
 
            problems.  She indicated claimant cannot function physically 
 
            as he did before and cannot do such things as open a jar 
 
            lid.
 
            
 
                 She indicated that when claimant would go for a 
 
            motorcycle ride he would go two blocks and have to come back 
 
            as he had no feeling in his hands.  She did say that 
 
            claimant does ride the motorcycle sometimes.  In her lay 
 
            person's opinion, claimant has a 100 percent loss of 
 
            function.  She said claimant's condition is the same or 
 
            worse than it was before his surgery.  She said claimant 
 
            didn't have carpal tunnel surgery, only a ganglion cyst 
 
            surgery.  She said the cyst bothered him and when it was 
 
            removed, he was still tender in the area.
 
            
 
                 Harry Fraker, claimant's stepfather, testified.  His 
 
            testimony was basically cumulative to his wife's testimony.  
 
            He did indicate that claimant could no longer ride his 
 
            snowmobile or the motorcycle, arm wrestle, has trouble 
 
            holding things up over his head, and cannot do any 
 
            remodeling.  He offered a lay person's opinion that 
 
            claimant's functional loss was 50 to 75 percent of the use 
 
            of his arms and shoulders.  Like his wife, Mr. Fraker's 
 
            opinion is based on observation.
 
            
 
                 David Schultz, a 23 year old welder, has known claimant 
 
            for seven years and is his best friend.  He also works at 
 
            defendant employer and was in contact with claimant every 
 
            weekend between 1989 and 1992.  He indicated he moved to 
 
            Ames two years ago.  Part of that time he saw claimant every 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            day as he was his room mate before he moved to Nevada.  Mr. 
 
            Schultz testified that claimant had no arm, hand or shoulder 
 
            problems prior to working for Barco in 1989.  Mr. Schultz 
 
            testified that before claimant worked for Barco, he was 
 
            around claimant and he arm wrestled.  Claimant was never 
 
            able to beat him until one month ago.  He also gave an 
 
            example of claimant working on a car and was unable to hold 
 
            a clutch with his hand.  He also gave an example of claimant 
 
            not being able to hold sheet rock in the spring of 1992 when 
 
            they were remodeling a house.  He also gave other examples.
 
            
 
                 Mr. Schultz was asked by claimant's attorney his 
 
            opinion as to claimant's loss of use and he indicated that 
 
            claimant lost 50 or 60 percent use of his arms.  Claimant's 
 
            attorney then asked "and in his shoulders?" and Mr. Schultz 
 
            answered yes, in the shoulders also.
 
            
 
                 On cross-examination, when Mr. Schultz was asked when 
 
            the claimant's forearm hurt after he had arm wrestled, he 
 
            could not say when or whether it was before or after 
 
            claimant's motorcycle accident.  He did not know the time 
 
            sequence at all.  He also did not know whether claimant's 
 
            problems are primarily in the shoulders or the arms.
 
            
 
                 Wayne Tietz, owner of defendant employer since 1980, 
 
            testified that the jobs at his company such as claimant had 
 
            are entry level jobs and are very physical and physically 
 
            demanding. They are not long term but are stepping stones 
 
            because they are physically demanding.  He indicated that 
 
            claimant's job ended on a conversation claimant had with 
 
            him, Harry Fraker and a Mr. Speck.  The conversation was 
 
            based on problems developing with the various doctors 
 
            concerning the various recommendations.  He said the doctors 
 
            indicated that claimant should avoid any repetitive job and 
 
            recommended that claimant find another job.  He emphasized 
 
            that claimant was not fired and that there was a 
 
            misunderstanding but did indicate claimant quit on his own 
 
            but not willingly.  Mr. Tietz indicated that he okayed 
 
            claimant to go to certain doctors and he had asked claimant 
 
            and understood that claimant was getting relief and never 
 
            heard him complain that his condition was worsening.  He 
 
            said claimant's complaints were primarily in his hands, 
 
            fingers, wrists and lower back but never complained of 
 
            shoulder, neck or back area problems.  Mr. Tietz said that 
 
            up to the time claimant left in November 1990, he was able 
 
            to do the work at defendant employer but he could not relate 
 
            the pain level that claimant may have been going through.  
 
            Again, he said claimant was able to do the work up to the 
 
            time he left.
 
            
 
                 Joint exhibit 1 reflects the fact that claimant had 
 
            pain on his left wrist and right side and complained of 
 
            tingling and numbness in both hands.  Said record also 
 
            indicates that claimant's condition is considered and 
 
            referred to as an overuse syndrome, tenosynovitis, 
 
            tendonitis and carpal tunnel syndrome and that the nature of 
 
            claimant's work results in a lot of repetitive motion as 
 
            well as lifting.  The records also indicate that on occasion 
 
            the pain would radiate into to claimant's upper extremities 
 
            or into the elbow and shoulder on the right side.  Page 19 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of joint exhibit 1 indicates claimant was released to return 
 
            to work beginning July 11, 1990, said release certificate 
 
            having been issued June 12, 1990, by Dilip K. Parikh, M.D.  
 
            On June 27, he modified that release and indicated claimant 
 
            could return to work on July 2, 1990, but he was not to use 
 
            the staple gun (Joint Exhibit 1, page 22).
 
            
 
                 Dr. Parikh also indicated that claimant's ganglion cyst 
 
            was related to his work.  It apparently had developed during 
 
            his work (Jt. Ex. 1, p. 23).
 
            
 
                 Page 25 of joint exhibit 1 reflects the area the 
 
            parties are disputing concerning the extent of claimant's 
 
            first alleged healing period when claimant was released by 
 
            Dr. Parikh to go back to work July 2.  Defendants' testimony 
 
            indicates defendants wanted him to see Dr. Mueller, another 
 
            chiropractor, to have him check the claimant.  This 
 
            apparently delayed things through the 5th.  The undersigned 
 
            believes that the testimony and other credible evidence 
 
            would indicate this first healing period would run from 
 
            April 21, 1990 through July 5, 1990.
 
            
 
                 One of the disputes or issues in this case is whether 
 
            claimant incurred another healing period beginning November 
 
            6, 1990 through March 28, 1991.  Joint exhibit 1, page 31, 
 
            indicates that claimant saw David A. Carlyle, M.D., on 
 
            November 6, 1990, and the doctor indicated in his report 
 
            that the patient cannot work while taking Voltarin.  He will 
 
            take him off of work for the time being.  It would appear 
 
            from the notes that claimant was off until the end of March 
 
            1991.  Claimant contends through March 28, 1991.
 
            
 
                 Page 44 of joint exhibit 1 is an initial evaluation 
 
            summary which indicates therein that claimant did not show 
 
            up or called to cancel his appointment.  There are occasions 
 
            of claimant not showing throughout the joint exhibit 1.  
 
            That report shows claimant has been off since early November 
 
            1990.  On pages 49 and 50 of joint exhibit 1, in reference 
 
            to a January 4, 1991 report by the occupational medicine 
 
            department of St. Joseph's Mercy Hospital, Mason City, it 
 
            indicates that claimant's attendance has been inconsistent 
 
            and that he has demonstrated an increase in bilateral grip 
 
            strength, right hand coordination and minimal increase in 
 
            upper extremity endurance.  The report further indicates 
 
            that claimant continues to have objective complaints of sore 
 
            hands and shoulders and popping serbation in the wrists.  
 
            The claimant was strongly encouraged to improve his 
 
            attendance.
 
            
 
                 A January 14, 1991 report from Mercy Hospital indicates 
 
            a work site visit was done and that the claimant's employer 
 
            reported that the patient would have to be able to return to 
 
            his previous job which requires highly repetitive and 
 
            forceful hand work done in a cold environment.  It also 
 
            indicates claimant's attendance has not been consistent 
 
            enough to warrant a continuation in a work hardening 
 
            program.  A January 16, 1991 note by Dr. Crane indicates 
 
            that claimant's hands are swollen and painful whenever he 
 
            does repetitious work.  The undersigned is confused by this 
 
            notation in that it would appear, and the claimant contends, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            he was off work during this time for at least over two 
 
            months and why claimant's hands would be swollen as he has 
 
            been doing no work or repetitious work is unknown.  
 
            Possibly, claimant is doing some other type of work whether 
 
            it be at home or somewhere else unknown to the doctor.  
 
            Since Dr. Crane's December 1990 notes (Jt. Ex. 1, p. 42) 
 
            reflect upon examination that "Although  he states that he 
 
            does nothing, his calluses are fairly thick and he had a 
 
            fair amount of dirt and other debris in the finger creases."  
 
            Joint exhibit 1, page 61, reflects that claimant had a 
 
            normal EMG study on March 12, 1991.
 
            
 
                 On March 28, 1991, Dr. Crane gave claimant an 
 
            impairment rating of 5 percent of the right upper extremity 
 
            and 3 percent of the left upper extremity and indicated that 
 
            he could find no underlying illness to explain all of 
 
            claimant's problems except basically fibrositis/tendonitis.  
 
            The doctor indicated that the claimant simply had a chronic 
 
            problem and he did not think any chronic restrictions are in 
 
            the best interest except that claimant needs to understand 
 
            that repetitious factory work will most likely give him 
 
            problems (Jt. Ex. 1, p. 62).
 
            
 
                 It is this permanent impairment determination that 
 
            enters into the dispute concerning a second healing period.  
 
            Claimant contends that it began on November 6, 1990 through 
 
            March 20, 1991.  The undersigned believes that claimant did 
 
            incur an additional healing period between those dates and 
 
            is therefore entitled to a second healing period.  It 
 
            appears to the undersigned that during that period of time 
 
            claimant was off work and was going to various types of 
 
            conservative treatment and tests and that it was the result 
 
            of those that led the doctor to ultimately determine 
 
            claimant's permanent disability.  There is nothing in the 
 
            record in which a doctor has claimant reaching maximum 
 
            healing period prior to the March 28, 1991 date.
 
            
 
                 On May 6, 1992, as reflected by joint exhibit 1, pages 
 
            72 through 74, Dr. Mueller wrote that it was his opinion 
 
            that he could have completely remedied claimant's condition 
 
            if the claimant had adhered to a recommended schedule of 
 
            care and other modalities such as nutrition, wrist supports 
 
            and ultrasonic therapy to the affected areas.  He further 
 
            indicated that the claimant had other ideas and that 
 
            claimant is suffering today because of lack of proper care 
 
            for his condition.  This report, of course, got claimant's 
 
            attorney's attention and he wrote other letters to doctors 
 
            to address this point.  Also, he wanted clarification as to 
 
            whether Dr. Crane included the claimant's shoulders when he 
 
            was referring to the upper extremities.  Joint exhibit 1, 
 
            page 84, clearly answers that question and the doctor 
 
            emphasizes in his September 1, 1992 report that claimant in 
 
            no way has a problem that extends into the shoulder but has 
 
            an upper extremity problem dealing with claimant's area of 
 
            the wrist and forearm (Jt. Ex. 1, p. 84).
 
            
 
                 In looking at joint exhibit 1, the undersigned might 
 
            note that there are several items which are part of the 
 
            exhibit that are not necessary but just take up the 
 
            undersigned's time and exhibit storage space.  They are 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            completely unnecessary and do not add in any respect to the 
 
            quality of the exhibits or the decision.  In part, these are 
 
            pages reflected by 85 through 102, which is notice of 
 
            service of medical reports and intent to offer.  The parties 
 
            should make a better effort to screen unnecessary exhibits 
 
            or parts of exhibits from the record.
 
            
 
                 There seems to be a question during the course of 
 
            claimant's alleged injury and treatment as to whether the 
 
            ganglion cyst was caused by claimant's repetitious work 
 
            injury on April 20, 1990.  Page 39 of claimant's exhibit A 
 
            is the record of defendant insurance carrier in which they 
 
            indicate a doctor advised them in a letter of June 4, 1990, 
 
            that he felt the cyst was possibly caused by trauma to the 
 
            wrist while at work.  Page 18 of joint exhibit 1 is the 
 
            particular letter the insurance carrier is referring to.  
 
            That letter also has another paragraph that states "Please 
 
            reconsider this for Workmen's Compensation as in my opinion 
 
            it was related to his work."  The undersigned finds that the 
 
            greater weight of evidence shows that claimant's ganglion 
 
            cyst on his left wrist was, in fact, caused by his 
 
            cumulative repetitive work injury of April 20, 1990.  
 
            Cumulative traumas are several micro traumas which would be 
 
            a trauma to the wrist.  The undersigned believes that 
 
            whether it was a direct single trauma or the result of the 
 
            micro trauma is not material in that the undersigned finds 
 
            that claimant's injury of April 20, 1990 caused claimant's 
 
            cyst and also caused claimant to have his permanent 
 
            impairment of 3 percent of claimant's left upper extremity, 
 
            as indicated in Dr. Crane's March 20, 1991 report (Jt. Ex. 
 
            1, p. 62).  The undersigned also finds that when the doctor 
 
            uses the word disability he means impairment.
 
            
 
                 Claimant's exhibit A contains considerable documents in 
 
            the form of letters, etc., that address the issue of the 
 
            interest and claimant's allegation that he is entitled to 
 
            86.13 penalty benefits and temporary partial disability 
 
            benefits.  The undersigned finds that the greater weight of 
 
            evidence indicates that claimant would be entitled to 
 
            temporary partial disability  which would be in the amount 
 
            of $317.22.  This figure appears to be not disputed assuming 
 
            the undersigned would find that claimant was entitled to 
 
            temporary partial disability benefits.
 
            
 
                 The parties are disputing the rate at which benefits 
 
            should be paid if liability is found.  Claimant contends 
 
            that claimant's gross earnings were $293.11 which would 
 
            amount to a rate of $180.36.  Defendants contend that the 
 
            rate should be $172.94.  Both rates are based on claimant 
 
            being single and having only himself as an exemption.  
 
            Claimant figured the rate based on claimant averaging the 13 
 
            weeks prior to the alleged injury at 44.75 hours per week at 
 
            a straight wage rate of $6.55 per hour.  In looking at 
 
            claimant's exhibit B, it appears that the hours claimant 
 
            worked which in every instance of the 13 weeks before his 
 
            injury amounted to in excess of 40 hours per week.  In fact, 
 
            they average 44.75 per week.  The exhibit also shows that 
 
            claimant was paid $6.55 straight wage rate so there was no 
 
            overtime or time and a half pay.  This amounted to $293.11 
 
            per week gross earnings average and this would result in 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            $180.36 per week rate.  On page 17 of claimant's exhibit A, 
 
            claimant's recorded statement did indicate that he was paid 
 
            $6.55 per hour and that he gets time and a half for over 40 
 
            hours.  Notwithstanding this, the evidence in claimant's 
 
            exhibit B indicates overtime was not paid.  Defendants 
 
            contend that on the March 12, 1990 work week, claimant 
 
            worked only 20 hours and defendants claim 45 hours.  The 
 
            record reflected on page 20 of claimant's exhibit B 
 
            indicates 45 hours and that it looks like this record is 
 
            kept in the same manner as other records encompassing weekly 
 
            hours worked.  The undersigned does note that the check on 
 
            page 20 reflects $106.50, wherein prior checks for similar 
 
            amounts of pay amounted to more than $231.  There is nothing 
 
            else showing why that check is $106 when the record also 
 
            shows 45 hours of work.  There could have been something 
 
            else deducted that resulted in the net check being lower.  
 
            The undersigned is going to rely on the time sheets and 
 
            finds that on that particular week involving March 12, 1990, 
 
            claimant had a total of 45 hours.  The undersigned therefore 
 
            finds that the rate to be used for figuring weekly benefits 
 
            is $180.36.
 
            
 
                 Defendants raise the defense that claimant failed to 
 
            mitigate damages.  There is evidence in the record in more 
 
            than one place in which it is apparent claimant either 
 
            missed or cancelled appointments or did not follow up or did 
 
            not put in the effort that should be expected.  Claimant 
 
            contends that he had an old car that was not reliable, there 
 
            wasn't a car available, that he didn't have the money for 
 
            gasoline, etc.  The undersigned finds that claimant could 
 
            have put forth more effort at times during his treatment.
 
            
 
                 There is a dispute concerning credit.  The dispute is 
 
            basically the payment of interest.  In other words, any 
 
            principal payment should be offset by interest that may have 
 
            accrued.  If this was done as claimant contends, the 
 
            principal payments would have been less than what the weekly 
 
            rate would be under either the claimant's or defendants' 
 
            rate computation.  This agency has held that section 85.30 
 
            expresses legislative intent that interest on unpaid 
 
            compensation be computed on the date each payment comes due 
 
            starting with the eleventh day after the injury.  Interest 
 
            is therefore payable on such installments from that due date 
 
            and similarly with the following weekly payments.  Interest 
 
            is computed according to the long-standing rule that partial 
 
            payments are applied first to accrued interest and the 
 
            remainder to reduce the permanent partial disability award.  
 
            The parties are directed to calculate interest on any weekly 
 
            benefits not paid when due based on the Iowa Code section 
 
            85.30.  The authorities are cited in the conclusions of law.  
 
            The record shows that interest has not been paid on the late 
 
            payments or on payments paid at less than the rate found 
 
            herein.  The undersigned therefore finds that payments 
 
            should be applied first to the accrued interest after the 
 
            date of payment and then to principal amounts due.  The 
 
            undersigned has left it to the parties to calculate the 
 
            interest.  If the parties are unable to do this, they shall 
 
            hire a CPA to arrive at the amount due and owing under this 
 
            decision.  The cost of the CPA will be assessed equally to 
 
            the parties if further intervention is necessary by this 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            agency to resolve this issue.
 
            
 
                 Defendants have not argued against the fact that 
 
            claimant had a scheduled member injury that arose out of and 
 
            in the course of his employment.  The evidence shows that 
 
            claimant incurred a simultaneous bilateral cumulative injury 
 
            to his upper extremities and the upper extremities being his 
 
            wrists and forearms, as indicated by Dr. Crane.  Claimant 
 
            contends that he has an occupational disease and, if not 
 
            that, then a body as a whole injury in that he has an injury 
 
            to his shoulders, also.  The undersigned finds, in reference 
 
            to Dr. Crane's report in which, he being the only doctor 
 
            that opined any permanency rating, emphatically reported 
 
            that claimant's injury did not result in an injury or 
 
            permanency to the shoulders but strictly to the upper 
 
            extremities.  His report also indicated that he meant upper 
 
            extremities.  He indicated the arms were also affected and 
 
            not that the injury was only bilaterally to the wrists or 
 
            hands and, thereby, limiting it to those scheduled members.
 
            
 
                 This agency has held in the Noble v. Lamoni Products, 
 
            File No. 857575, (Appeal Dec. May 7, 1992), that facts such 
 
            as we have in this case do not result in an occupational 
 
            disease.  It is obvious the claimant acknowledges this but 
 
            also is protecting his rights in case a judge or court along 
 
            the line would disagree with the current agency decision and 
 
            the claimant wants to reserve the competing rationale on 
 
            this issue.  This issue is on its way up on appeal.  The 
 
            undersigned sees no further necessity of elaborating or 
 
            giving the rationale as to the agency's position as it has 
 
            been very clearly documented.  The undersigned has agreed 
 
            with this agency's rationale anyway.
 
            
 
                 The undersigned finds that the greater weight of 
 
            medical testimony indicates that claimant has incurred a 5 
 
            percent permanent impairment to his right upper extremity 
 
            and 3 percent to the left upper extremity.  The undersigned 
 
            finds that claimant has a simultaneous bilateral tendonitis 
 
            fibrositis work injury as a result of a cumulative work 
 
            injury on April 20, 1990.  The undersigned finds that 
 
            claimant does not have a body as a whole injury.  The 
 
            undersigned finds that claimant's permanency is based on 
 
            Iowa Code section 85.34(2)(s), in which case the combination 
 
            charts based on 500 weeks shall be used.  As found earlier, 
 
            the undersigned finds that the doctor's ratings involved the 
 
            upper extremity.  The 5 percent and 3 percent of the upper 
 
            extremity converts to 3 percent and 2 percent of the whole 
 
            person.  Under table 2 and using the combined values chart, 
 
            claimant would have a 5 percent body as a whole impairment 
 
            which would amount to 25 weeks of permanent partial 
 
            disability benefits which the undersigned so finds claimant 
 
            has incurred as a result of his April 20, 1990 simultaneous 
 
            bilateral upper extremity cumulative injury.
 
            
 
                 The undersigned has found claimant incurred two healing 
 
            periods and also had a period of temporary partial 
 
            disability.  It would appear from the facts that the 
 
            permanent disability benefits would begin on August 2, 1990 
 
            through November 5, 1990, and then resume again on March 29, 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            1991, which is the date after the end of the last healing 
 
            period and the day after which Dr. Crane opined claimant's 
 
            permanent impairments (Jt. Ex. 1, p. 62).
 
            
 
                 The final issue is whether claimant is entitled to 
 
            86.13 penalty benefits.  The record has considerable 
 
            correspondence from claimant's attorney forming or 
 
            attempting to form a foundation for this issue.  Claimant's 
 
            attorney had filed two petitions in this case and they have 
 
            both been placed under this one file number, one petition 
 
            being an occupational disease and the other one claiming 
 
            body as a whole injury to claimant's shoulders and upper 
 
            extremities.  Claimant obviously was pressing both issues or 
 
            desired both be pressed.  It is obvious defendants relied on 
 
            agency precedence as far as not paying anything on the 
 
            occupational disease theory.  The water has been muddied by 
 
            certain facts, one of which is that claimant had a ganglion 
 
            cyst which seemed reasonable that there might be a question 
 
            as to whether it was caused by a cumulative work injury, and 
 
            claimant's record is not good as to following instructions 
 
            and proceeding with the work hardening program, etc.
 
            
 
                 The undersigned finds that claimant has failed in his 
 
            burden to prove that there was a delay in the commencement 
 
            of payments of benefits without reasonable or probable cause 
 
            or excuse.   The undersigned finds that claimant is not 
 
            entitled to any 86.13 benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 20, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 20, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Iowa Code section 85.34(2)(s) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 In Farmer's Elevator Co., Kingsley v. Manning, 286 
 
            N.W.2d 174 (Iowa 1979), at 180, the Iowa Supreme Court said:
 
            
 
                 Section 85.30 expresses legislative intent that 
 
                 interest on unpaid compensation be computed from 
 
                 the date each payment comes due, starting with the 
 
                 eleventh day after the injury....Interest is 
 
                 therefore payable on such installments from that 
 
                 due date, and similarly with the following weekly 
 
                 payments.
 
            
 
                 Interest is computed according to the long-standing 
 
            rule that partial payments are applied first to accrued 
 
            interest and the remainder to reduce the permanent partial 
 
            disability award.  McNeal v. Iowa Department of 
 
            Transportation, Order Nunc Pro Tunc, May 31, 1990.  Also see 
 
            Clausen v. Carmar Farms, Ltd., Volume 1, No. 3 State of 
 
            Iowa Industrial Commissioner Decisions 540 (1985).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a cumulative, simultaenous bilateral 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            upper extremity scheduled member injury on April 20, 1990, 
 
            which caused claimant to incur a healing period beginning 
 
            April 21, 1990 through July 5, 1990, and another healing 
 
            period beginning November 6, 1990 through March 28, 1991.  
 
            Claimant also incurred a temporary partial disability period 
 
            beginning July 5, 1990 through August 1, 1990.  The 
 
            temporary partial disability benefit entitlement would be in 
 
            the amount of $317.22.  Claimant's total healing period 
 
            would amount to 10.857 and 20.429 weeks, respectively, 
 
            totaling 31.286 weeks payable at the rate of $180.36.
 
            
 
                 Claimant's rate of weekly benefits would be paid at the 
 
            rate of $180.36 based on claimant averaging 44.75 hours per 
 
            week for 13 weeks prior to his injury.  Said hours did not 
 
            encompass overtime pay and the 44.75 hours were paid at a 
 
            straight rate time of $6.55 per hour.
 
            
 
                 Claimant's work injury caused claimant to incur a 5 
 
            percent permanent impairment to his right upper extremity 
 
            and a 3 percent permanent impairment to his left upper 
 
            extremity.  Said impairments were bilaterally and 
 
            simultaneously caused by an April 20, 1990 cumulative injury 
 
            and said impairments resulted in claimant incurring a 5 
 
            percent impairment to his body as a whole under the 
 
            combination charts of the AMA Guides to the Evaluation of 
 
            Permanent Impairment, third edition.  As a  result, claimant 
 
            is entitled to 25 weeks of permanent partial disability 
 
            benefits payable at the rate of $180.36.  Payments shall 
 
            begin August 2, 1990 and temporarily cease on November 5, 
 
            1990, and begin again for the balance of the payments on 
 
            March 29, 1991.
 
            
 
                 Claimant is entitled to interest as provided by Iowa 
 
            Code section 85.30 and in accordance with the Farmer's 
 
            Elevator Co., Kingsley v. Manning case.  If the parties 
 
            cannot agree on the amount, they shall hire a CPA at the 
 
            parties' equal expense.
 
            
 
                 Claimant did not follow medical instructions in 
 
            following work hardening procedures, in keeping appointments 
 
            as he should, and did not to the full extent possible 
 
            mitigate damages.
 
            
 
                 Claimant did not incur an occupational disease which 
 
            arose out of and in the course of his employment on April 
 
            20, 1990.
 
            
 
                 Claimant is not entitled to 86.13 penalty benefits.
 
            
 
                 The credit defendants are entitled to is to be adjusted 
 
            by the ruling concerning the interest in that interest is to 
 
            be paid first and then the principal, as provided by Iowa 
 
            Code section 86.30 and in reference to the Farmer's Elevator 
 
            Co., Kingsley v. Manning case previously referred to.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            benefits at the rate of one hundred eighty and 36/100 
 
            dollars ($180.36) for the periods beginning April 20, 1990 
 
            through July 5, 1990, involving ten point eight five seven 
 
            (10.857) weeks and for the period beginning November 6, 1990 
 
            through March 28, 1991, involving twenty point four two nine 
 
            (20.429) weeks, totaling thirty-one point two eight six 
 
            (31.286) weeks.
 
            
 
                 That defendants shall pay claimant temporary partial 
 
            disability benefits for the period beginning July 6, 1990 
 
            through August 1, 1990, amounting to a total of three 
 
            hundred seventeen and 22/100 dollars ($317.22).
 
            
 
                 That defendants shall pay unto claimant twenty-five 
 
            (25) weeks of permanent partial disability benefits at the 
 
            rate of one hundred eighty and 36/100 dollars ($180.36), 
 
            commencing August 2, 1990, and temporarily ending November 
 
            5, 1990, and beginning again on March 29, 1991 until paid.
 
            
 
                 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 forth in Iowa Code section 85.30 and as 
 
            provided in the Farmer's Elevator Co., Kingsley v. Manning 
 
            case.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Mark S Soldat
 
            Attorney at Law
 
            714 E State St
 
            Algona IA 50511
 
            
 
            Mr Eldon J Winkel
 
            Attorney at Law
 
            111 N Hall St
 
            P O Box 266
 
            Algona IA 50511
 
            
 
                 
 
            
 
 
 
 
         
 
 
 
                                              1100; 1108; 1803
 
                                              1808; 2209; 3002
 
                                              1802; 5-1801.1; 3800
 
                                              4000; 1803.1; 2203
 
                                              Filed November 25, 1992
 
                                              Bernard J. O'Malley
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         CHAD E. PRESTHUS,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 952215
 
         BARCO INC. a/k/a BARCO,       :
 
         MANUFACTURING,                :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         HERITAGE INSURANCE COMPANY,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         1100; 1108; 1803; 2209; 1808; 3002
 
         Found claimant incurred a work-related simultaneous bilateral, 
 
         upper extremity, cumulative injury on April 20, 1990, which 
 
         caused claimant to incur 25 weeks of permanent partial disability 
 
         benefits under 85.34(2)(s) at a rate found to be $180.36.
 
         
 
         1802; 5-1801.1; 3800
 
         Claimant awarded two healing periods.
 
         Claimant awarded $317.22 of permanent partial disability 
 
         benefits.
 
         Claimant awarded interest.  Parties disputed when and what was 
 
         due.
 
         
 
         4000
 
         Claimant was not awarded 86.13 penalty benefits.
 
         
 
         1803.1
 
         Found claimant did not incur an industrial disability .  He did 
 
         not injure his shoulders and did not incur a body as a whole 
 
         injury.
 
         
 
         2203
 
         Found claimant did not incur an occupational disease and cited 
 
         agency precedence in this area.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
ROBERT ALAN WEST,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 952365
 
PURINA MILLS, INC.,   
 
                                           A P P E A L
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
CIGNA PROPERTY & CASUALTY CO., 
 
            
 
     Insurance Carrier,    
 
     Defendants.     
 
_________________________________________________________________
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                              ISSUES
 
 
 
     Defendants state the following issues on appeal:
 
 
 
1.  The deputy commissioner erred in finding that there was a causal 
 
connection between Claimant's alleged June 21, 1990 injury and any 
 
permanent impairment; therefore Claimant is not entitled to any award 
 
of industrial disability.
 
 
 
2.  Alternatively, the deputy commissioner erred in finding that 
 
Claimant suffered an 80% industrial disability.
 
 
 
3.  The deputy commissioner erred in finding that Respondents did not 
 
have an interest in the personal injury settlement received by Claimant 
 
arising out of the June 21, 1990 motor vehicle accident that gives rise 
 
to this claim.
 
 
 
4.  The deputy commissioner erred in excluding the testimony of John 
 
Winblade, Claimant's co-worker, concerning Claimant's intention to 
 
cease employment and go on disability prior to the June 21, 1990 
 
accident.
 
 
 
Claimant has failed to state any additional issues on cross-appeal.
 
 
 
                               FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
April 7, 1994 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 worked for Purina for 12 years prior to the injury.  At the 
 
time of injury, he alternated as a truck driver and as a micro 
 
operator.  The micro operator job not only involved using a computer to 
 
mix feed additives but physical work such as lifting bags weighing as 
 

 
 
 
 
 
 
 
 
 
much as 50-100 pounds on occasion.  His work as a driver involved dock 
 
work in which he loaded and unloaded trucks which required heavy 
 
lifting and pushing.  Claimant was terminated from his job by Purina 
 
when he physically could not return to duty after the work injury 
 
herein.
 
 
 
On or about June 21, 1990, claimant injured his low back while driving 
 
a Purina truck.  Another truck side swiped the vehicle driven by 
 
claimant and forced claimant onto an eight inch concrete median 
 
jostling claimant and a fellow Purina worker about the cab.  Following 
 
the incident, claimant finished his truck route but later began to 
 
experience chronic low back pain.  He was initially treated 
 
conservatively by Donald Berg, M.D., an orthopedic surgeon, with a 
 
medical leave from work, medication, back supports and physical 
 
therapy.  However, when claimant failed to improve, his care was 
 
assumed by Hugh MacMenamin, M.D., another orthopedic surgeon.  His 
 
treatment also remained conservative until he was released from care on 
 
December 10, 1990.  At that time, Dr. MacMenamin opined that claimant 
 
had reached maximum healing and had suffered permanent impairment from 
 
the injury.  Dr. MacMenamin imposed work restrictions against heavy 
 
lifting, bending and twisting.  With these restrictions, claimant was 
 
terminated by Purina as they had no job available for him.  Based on 
 
the views of the treating orthopedic surgeon, Dr. MacMenamin, it is 
 
found that claimant reached maximum healing on December 10, 1990.
 
 
 
Claimant had prior existing health problems before the injury including 
 
a degenerative back condition.  This was aggravated by claimant's 
 
obesity.  Claimant also had a prior work restriction against lifting 
 
over 25 pounds due to a incisional hernia.  However, claimant testified 
 
that he was able to fully perform his work at Purina, including the 
 
heavy work, prior to the work injury herein.  Company records indicate 
 
that claimant was a good worker at Purina prior to the injury.  
 
 
 
Therefore, it is found that although claimant may have a prior slight 
 
physical impairment due to a variety of health problems, claimant had 
 
little or no disability prior to the work injury and no loss of earning 
 
capacity due to those health conditions.  Claimant was considered 
 
"strong as an ox" prior to the work injury herein.
 
 
 
Based upon the greater weight of evidence, the work injury of June 21, 
 
1990 is found to be a cause of a significant permanent impairment to 
 
the body as a whole.  Almost all physicians in this case opine that at 
 
least a significant portion of claimant's impairment is due to the 
 
truck accident injury.  Only one physician questioned the causal 
 
connection of claimant's condition to the injury.  The exact percentage 
 
is less important in an industrial disability case.  More importantly, 
 
due to the work injury, claimant now has formal restrictions placed 
 
upon him against heavy lifting, bending and twisting.  It was due to 
 
these work restrictions imposed after the June 21, 1990 injury that 
 
claimant was terminated by Purnia.  He has not worked since.
 
 
 
Due to the work injury herein and physical restrictions imposed as a 
 
result of that injury, claimant is unable to return to his former work 
 
or most other work for which he is best suited given his age, education 
 
and work experience.  Claimant is unable to sit for more than a few 
 
minutes without pain.  He can no longer twist or bend in a work 
 
setting.  He experiences chronic pain which requires regular rest and 
 
changing positions.  Claimant's only work experience has been in truck 
 
driving and heavy manual labor occupations which require him to perform 
 
physical tasks that he can no longer perform.  Claimant is a high 
 
school graduate but has great difficulty reading.  His testimony that 
 
he bluffed his way through school and driving tests is believed and 
 
uncontroverted.  Claimant has only worked in jobs that require physical 
 
labor beyond his work restrictions.  Claimant is 41 years of age.  He 
 
should be in the most productive, high income years of his life.  His 
 
loss of earning capacity is greater than would be experienced for 
 
younger or older individuals.  Due to his lack of reading skills, he 
 
has very limited potential for vocational rehabilitation.  Vocational 
 
counselor, Jack Reynolds, reports that at most claimant could only hope 
 
to obtain sedentary jobs such as cashier, assembly or attendant 
 
positions at $5 per hour and would only be lucky to find full time 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
employment.  Claimant was earning over $500 per week at Purnia.
 
Also, from a functional capacities test, a physical therapist has 
 
concluded that claimant is able to perform more than he feels he is 
 
capable of.  Claimant is not intentionally holding back, but his 
 
chronic pain syndrome has affected his perception of his abilities 
 
which can be extended by aggressive physical therapy.  However, this 
 
has not happened yet and claimant still remains severely disabled. 
 
From examination of all of the factors of industrial disability, it is 
 
found that the work injury of June 21, 1990 was a cause of a 80 percent 
 
loss of earning capacity.
 
 
 
Claimant failed to show that voluntarily paying no more than nine 
 
percent of disability benefits was unreasonable conduct on the part of 
 
defendants.  Given claimant's past medical problems and the views of 
 
David Boarini, M.D., that possibly none of claimant's current problems 
 
are work related, renders defendants' actions fairly debatable. 
 
 
 
It is found that claimant received a recovery from a third party in the 
 
amount of $200,000 in an action pursued by claimant arising from the 
 
facts and circumstances of the work injury herein.
 
 
 
                           CONCLUSIONS OF LAW
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
April 7, 1994 are adopted as set forth below.  Segments designated by 
 
asterisks (*****) indicate portions of the language from the proposed 
 
agency decision that have been intentionally deleted and do not form a 
 
part of this final agency decision.  Segments designated by brackets ([ 
 
]) indicate language that is in addition to the language of the 
 
proposed agency decision.
 
 
 
Claimant must next establish by a preponderance of the evidence the 
 
extent of weekly benefits for permanent disability to which claimant is 
 
entitled.  As the claimant has shown that the work injury was a cause a 
 
permanent physical impairment or limitation upon activity involving the 
 
body as a whole, the degree of permanent disability must be measured 
 
pursuant to Iowa Code section 85.34(2)(u).  However, unlike scheduled 
 
member disabilities, the degree of disability under this provision is 
 
not measured solely by the extent of a functional impairment or loss of 
 
use of a body member.  A disability to the body as a whole or an 
 
"industrial disability" is a loss of earning capacity resulting from 
 
the work injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 
 
N.W. 899 (1935).  A physical impairment or restriction on work activity 
 
may or may not result in such a loss of earning capacity.  Examination 
 
of several factors determines the extent to which a work injury and a 
 
resulting medical condition caused an industrial disability.  These 
 
factors 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.  
 
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
1985).
 
 
 
Refusal of employer to return claimant to work is evidence of a serious 
 
disability.  See Larson Law of Workmen's Compensation, 57.61, pp. 
 
10-164.90-95.  
 
 
 
In the case sub judice, it was found that claimant suffered an 80 
 
percent loss of his earning capacity as a result of the work injury.  
 
 
 
Such a finding entitles claimant to 400 weeks of permanent partial 
 
disability benefits as a matter of law under Iowa Code section 
 
85.34(2)(u) which is 80 percent of 500 weeks, the maximum allowable 
 
number of weeks for an injury to the body as a whole in that 
 
subsection. 
 
 
 
Claimant's entitlement to permanent partial disability also entitles 
 

 
 
 
 
 
 
 
 
 
him to weekly benefits for healing period under Iowa Code section 85.34 
 
from the date of injury until claimant returns to work; until claimant 
 
is medically capable of returning to substantially similar work to the 
 
work he was performing at the time of injury; or, until it is indicated 
 
that significant improvement from the injury is not anticipated, 
 
whichever occurs first.  It was found that claimant reached maximum 
 
healing on December 10, 1990.  Healing period benefits will be awarded 
 
accordingly.
 
 
 
Claimant seeks additional weekly benefits under Iowa Code section 
 
86.13, unnumbered last paragraph.  That provision states that if a 
 
delay in commencement or termination of benefits occurs without 
 
reasonable or probable cause or excuse, the industrial commissioner 
 
shall award extra weekly benefits in an amount not to exceed 50 percent 
 
of the amount of benefits that were unreasonably delayed or denied.  
 
 
 
Defendants may deny or delay the payment of benefits only when the 
 
claim is fairly debatable.  Seydel v. U of I Physical Plant, Appeal 
 
Decision, November 1, 1989.  When the claim is "fairly debatable," the 
 
insurer is entitled to debate it, whether the debate concerns a matter 
 
of fact or law."  As it was found that a lack of causal connection of 
 
the work injury to any permanent impairment was fairly debatable, 
 
claimant is not entitled to penalty benefits.
 
 
 
     *****
 
 
 
[Defendants offered the testimony of John Winblade.  This testimony was 
 
properly restricted by the deputy.  Interrogatories from claimant 
 
clearly asked for the names of any persons that would testify about the 
 
injury and the substance of their statements.  Defendants did list 
 
Winblade as a witness, but failed to state that part of his testimony 
 
would include a statement allegedly made by claimant to Winblade about 
 
claimant's desire to go onto disability, made prior to the date of 
 
injury.  Defendants' overly technical reading of the interrogatory 
 
resulted in a failure to appraise claimant of this evidence and prepare 
 
to meet it.  One of the purposes of discovery is to avoid trial by 
 
ambush.  Defendants will not be allowed to conceal this evidence and 
 
then introduce it into the record by surprise.
 
 
 
Defendants seek a lien and credit for indemnification under Iowa Code 
 
85.22(1).  Recent case law, including Thomas v. Hansen, 524 N.W.2d 145 
 
(Iowa 1994) and Christensen v. Pocket Lounge, Inc., 519 N.W.2d 401 
 
(Iowa 1994) establish defendants' entitlement to a credit or lien.]
 
 
 
WHEREFORE, the decision of the deputy is affirmed and modified.
 
 
 
                             ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendants shall pay to claimant four hundred (400) weeks of 
 
permanent partial disability benefits at a rate of three hundred 
 
twenty-eight and 90/l00 dollars ($328.90) per week from December 11, 
 
1990.
 
 
 
That defendants shall pay to claimant healing period benefits from June 
 
21, 1990 through December 10, 1990, at the rate of three hundred 
 
twenty-eight and 90/l00 dollars ($328.90) per week.
 
 
 
That defendants shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against this award for all benefits previously 
 
paid.
 
 
 
That defendants shall receive credit for previous payments of benefits 
 
under a non-occupational group insurance plan, if applicable and 
 
appropriate under Iowa Code section 85.38(2), less any tax deductions 
 
from those payments.
 
 
 
That defendants shall receive a credit against this award not to exceed 
 
two hundred thousand dollars ($200,000), less allowable attorney fees 
 
and costs, for payments of workers' compensation benefits made to 
 
claimant herein prior to claimant's receipt of the third party 
 

 
 
 
 
 
 
 
 
 
recovery.  Defendants shall also receive a credit or a lien against 
 
this third party recovery for any compensation payments made thereafter 
 
or into the future in satisfaction of this award pursuant to Iowa Code 
 
section 85.22(1).
 
 
 
That defendants shall pay interest on weekly benefits awarded herein as 
 
set forth in Iowa Code section 85.30. 
 
 
 
That claimant and defendants shall share equally the costs of the 
 
appeal including transcription of the hearing.  Defendants shall pay 
 
all other costs.
 
 
 
That defendants shall file activity reports on the payment of this 
 
award as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of January, 1995.       
 
 
 
                             _______________________________
 
                              BYRON K. ORTON           
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Stephen D. Lombardi
 
Attorney at Law
 
10101 University Ave., Ste 202
 
Des Moines, Iowa 50325
 
 
 
Mr. John M. Bickel
 
Attorney at Law
 
P O Box 2107
 
Cedar Rapids, Iowa  52406
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                5-1803; 3700
 
                                Filed January 31, 1995
 
                                Byron K. Orton
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
ROBERT ALAN WEST,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 952365
 
PURINA MILLS, INC.,   
 
                                          A P P E A L
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
CIGNA PROPERTY & CASUALTY CO.,  
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
5-1803
 
Nonprecedential, extent of disability case.
 
 
 
3700
 
Failure to identify in interrogatories statement by witness who 
 
offered damaging testimony on claimant's credibility resulted 
 
in exclusion of said testimony.
 
 
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            KATHY WEST,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 894094
 
            O'BRYAN BROTHERS, INC.,  
 
                                                 A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MANUFACTURERS   
 
            MUTUAL INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                       ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            
 
                   I. Whether the claimant's disability is causally                 
 
                      connected to her work activities at O'Bryan 
 
                      Brothers, Inc.
 
            
 
                 II.  Whether there was substantial evidence 
 
                    presented at the hearing in this matter 
 
                    to support a forty percent industrial 
 
                    disability award.
 
            
 
                 III. Whether substantial record evidence was 
 
                      presented at hearing to support an award of 
 
                      86.13 penalty benefits.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed January 15, 1991 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 began working for O'Bryan Brothers, a manufacturer 
 
            of wearing apparel, in 1984 as a sewing machine operator.  
 
            Later on, claimant became an "order filler."  This job 
 
            involved the carrying of various items of apparel and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            placing them on a central overhead rail.  These items of 
 
            apparel were than rolled down the rail to be shipped to the 
 
            buyer.  The job involved a considerable amount of walking 
 
            between the storage areas and the centralized rail.  There 
 
            was also a considerable amount of reaching above shoulder 
 
            level.  Although the individual items weighed only a few 
 
            pounds, employees would commonly carry large bundles of 
 
            garments at one time.  According to claimant and fellow 
 
            employees, order fillers would usually work very fast and 
 
            hard as the job was paid on an incentive basis.  Management 
 
            at O'Bryan Brothers and fellow employees agree that claimant 
 
            was one of these hard workers.  Fellow employees agreed that 
 
            the job was physically demanding causing routine body aches 
 
            at the end of every working day.  Claimant earned 
 
            approximately $18,000 a year in this job prior to her 
 
            injury.
 
            
 
            On or about May 19, 1988, claimant suffered an injury which 
 
            arose out of and in the course of her employment at O'Bryan 
 
            Brothers.  May 19, 1988, is the time when claimant was 
 
            forced by back and leg pain to leave her employment to seek 
 
            medical treatment.  The back and leg pain was the result of 
 
            repetitive stresses and traumas occurring as a result of her 
 
            work as an order filler in the months prior to May 19, 1988.  
 
            Claimant has not returned to employment in any capacity 
 
            since May 19, 1988.  Claimant was treated by Thomas 
 
            Carlstrom, M.D., a neurosurgeon, between May 19, 1988 and 
 
            October 5, 1988.  Dr. Carlstrom diagnosed a herniated disc 
 
            in the claimant's lower spine and treated this condition 
 
            with an absence from work activity, medication and 
 
            corrective surgery.
 
            
 
            As a result of the work injury of May 19, 1988, claimant has 
 
            a 5-7 percent permanent partial impairment to the body as a 
 
            whole.  Also, claimant is permanently restricted from 
 
            lifting over 30-35 pounds at any time, lifting over 20-25 
 
            pounds repetitively and no sitting or standing over one hour 
 
            in one position.  After her release from Dr. Carlstrom's 
 
            care and the imposition of the above work restrictions by 
 
            Dr. Carlstrom, claimant called O'Bryan Brothers and, due to 
 
            the restrictions, she did not think it was possible for her 
 
            to return to the job of order filler or sewing machine 
 
            operator.  O'Bryan Brothers' representative, Verda Morris, 
 
            agreed with claimant on this aspect.  Morris testified at 
 
            hearing that she might be able to find or create a job to 
 
            fit within claimant's work restrictions.  However, no job 
 
            had been offered to claimant since O'Bryan Brothers has 
 
            learned of claimant's work restrictions.  After claimant 
 
            discovered that she would not be able to return to work, she 
 
            started attending a local community college and obtained an 
 
            associate of arts degree.  At the present time she is 
 
            enrolled as a full-time student seeking a four year 
 
            baccalaureate degree in social work.  This educational 
 
            effort has been solely at her own expense.
 
            The findings of a work injury herein and that this injury 
 
            caused permanent partial impairment are based upon the views 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of the treating physician, Dr. Carlstrom, and the views of a 
 
            treating chiropractor, Charles Manuel, D.C., who treated 
 
            claimant in October 1987, November 1987 and February 1988.  
 
            Both of these doctors agree that although claimant may have 
 
            had prior back surgery in 1984 and some back problems in 
 
            October and November of 1987, the herniated disc found by 
 
            Dr. Carlstrom could not have occurred prior to February 
 
            1988.  They also stated that from their observations, 
 
            claimant only had repetitive stress on her back in her work 
 
            at O'Bryan Brothers.  Dr. Carlstrom had previously operated 
 
            on claimant in 1984.  He stated that claimant had a long 
 
            history of back problems and was predisposed to easy 
 
            herniations of the spinal disc.  The 1984 surgery involved 
 
            the repair of three herniated discs of claimant's spine when 
 
            she was only 24 years old.  Dr. Carlstrom felt that the 
 
            herniation he found in May 1988 was a new herniation and 
 
            unrelated to the 1984 problems.  Defendants point to a prior 
 
            injury in which claimant allegedly fell from a pickup in 
 
            October 1987.  However, both Dr. Carlstrom and Dr. Manuel 
 
            who actually treated claimant after this supposed injury, 
 
            felt that the injury would not be a contributing factor to 
 
            the May 1988 herniation.
 
            
 
            The only medical evidence offered by defendants to support 
 
            their denial of the claim was a report from a one time 
 
            evaluator retained after this case was set for hearing.  
 
            Scott Kelly, M.D., an orthopedic surgeon, reported that he 
 
            examined claimant on May 17, 1990, two years after the 
 
            alleged injury, and stated that:  "It was difficult to 
 
            attribute her back pain specifically to work or outside 
 
            activity because she does not know what brought on the leg 
 
            pain."  Dr. Kelly places a great deal of emphasis in his 
 
            report on the injury of October 1987 involving the pickup.  
 
            It is not clear from his report whether he reviewed the 
 
            depositions of Dr. Manuel or actually talked to Dr. Manuel.  
 
            In that deposition, Dr. Manuel stated that claimant's 
 
            symptoms after the fall of October 1987 were different from 
 
            the problems he later found in November and February of 1987 
 
            which he attributes to an underlying back problem.  It is 
 
            also not clear whether Dr. Kelly was familiar with 
 
            claimant's job at O'Bryan Brothers.  Both Dr. Carlstrom and 
 
            Dr. Manuel have stated that they were fully aware of 
 
            claimant's job duties.
 
            
 
            In their denial of the claim, defendants also relied upon 
 
            insurance forms completed by claimant which initially stated 
 
            that after she first sought treatment in 1988 that the 
 
            problems were not related to her work.  Claimant did not 
 
            deny that she completed the forms in that manner.  However, 
 
            she stated that she did not know what was causing her pain 
 
            at the time.  She only suspected that her work was the 
 
            problem.  It was Dr. Carlstrom who, after an investigation 
 
            of claimant's history, told claimant that her problems were 
 
            worked related and that these claims should be treated as 
 
            workers' compensation.
 
            
 
            As a result of the work injury of May 19, 1988, claimant has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            suffered a 40 percent loss of earning capacity.  Although 
 
            she had prior back problems and back surgery, claimant had 
 
            no functional impairments or ascertainable disabilities and 
 
            was fully able to perform her work which involved repetitive 
 
            lifting and prolonged walking and standing.  As a result of 
 
            her work injury, claimant's physical condition prevents her 
 
            from returning to her former work at O'Bryan Brothers or any 
 
            other work which requires claimant to violate her work 
 
            restrictions.  Claimant is 30 years of age and relatively 
 
            young.  Claimant has a high school education and is 
 
            attempting vocational rehabilitation education.  Claimant's 
 
            past employment primarily consists of work in nursing homes 
 
            which she can no longer perform due to her lifting 
 
            restrictions.  Claimant has suffered a significant loss of 
 
            actual earnings when she lost her $10 per hour job at 
 
            O'Bryan Brothers.  Due to her attempts at vocational 
 
            rehabilitation through education, claimant is understandably 
 
            not available at the present time for full-time work.  
 
            However, she has applied for part-time work but with little 
 
            success to date.  Defendants have not assisted claimant in 
 
            any manner with her attempts at vocational rehabilitation.
 
            Defendants contend that their attempts at vocational 
 
            rehabilitation has been frustrated by claimant's lack of 
 
            cooperation with the retained vocational rehabilitation 
 
            consultant, Connie Janssen.  However, Connie Janssen's 
 
            testimony at hearing indicated that she was hired primarily 
 
            for the purpose of testifying as an expert at the hearing 
 
            for the defense rather than vocational rehabilitation.  She 
 
            was not retained until after the case was scheduled for 
 
            hearing.  Also, Janssen testified that her attempts to 
 
            secure permission from claimant for an "initial evaluation" 
 
            ended when it became apparent that her evaluation could not 
 
            be completed "prior to hearing."
 
            
 
            Defendants have denied the workers' compensation claims of 
 
            Kathy West with reference to the work injury found herein 
 
            since the claim was made in August 1988.  In an answer to 
 
            interrogatories proposed by claimant, defendants stated that 
 
            their denial of the claim is based upon the following:  
 
            claimant's congenital problems; the October 1987 injury; 
 
            claimant's oral statements to co-workers that her problems 
 
            were hereditary; claimant's statements on insurance claim 
 
            forms filed in 1988 that the condition was not work related; 
 
            and, the views of John Kelly, M.D.  It is found that 
 
            defendants' denial of the claim is unreasonable.  No 
 
            evidence was offered from co-workers to support the response 
 
            to interrogatories.  Dr. Carlstrom first indicated to 
 
            defendants on October 5, 1988, that claimant's injury was 
 
            the result of a cumulative trauma from her work at 
 
            O'Bryan's.  In March 1989, a medical consultant retained by 
 
            defendants verified to the defendant insurance carrier that 
 
            Dr. Carlstrom felt claimant's back problems in May 1988 were 
 
            work related after viewing a video tape of the job.
 
            Not until May 1990, only after this matter was set for 
 
            hearing, did defendants obtain a supportive medical opinion.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            First, the securing of this opinion does not justify a 
 
            previous denial of the claim which was not based upon any 
 
            medical opinion.  A claims practice which denies a claim 
 
            without investigation and without a concurrent medical 
 
            opinion is unreasonable.  Secondly, Dr. Kelly's only opinion 
 
            was that the determination would be "difficult."  In his 
 
            deposition, Dr. Carlstrom also stated that he too had some 
 
            difficulty identifying the cause of claimant's problems.  It 
 
            was only after Dr. Carlstrom investigated claimant's history 
 
            more thoroughly that he arrived at the conclusion that 
 
            claimant's problems were solely the result of her work at 
 
            O'Bryan Brothers.  There was no evidence that defendants 
 
            asked Dr. Kelly to pursue the matter fully.  Had he done so, 
 
            he may have very well have arrived at the same conclusion as 
 
            Dr. Carlstrom.  Also, to base a denial upon the fact that 
 
            claimant herself was unsure of the cause of her problems and 
 
            filled out insurance forms accordingly is again very 
 
            unreasonable.  Physicians in this case agree that 
 
            identification of the cause was difficult even for trained 
 
            medical experts.  Finally, basing a denial upon the alleged 
 
            fall in October 1987, indicates that defendants failed to 
 
            discuss the matter with the treating chiropractor who 
 
            rejects any causal connection of claimant's problems at that 
 
            time with the May 1988 injury.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed January 15, 1991 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.
 
              
 
              I.  Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health 
 
            impairments, and a work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
            It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever, the injury 
 
            date coincides with the time claimant was compelled by her 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            pain to give up her job.  This date was then utilized in 
 
            determining rate and the timeliness of the claim.
 
            In the case sub judice, the lay and medical evidence was 
 
            more than sufficient to support claimant's claim that she 
 
            suffered a cumulative or gradual work injury at the time she 
 
            was compelled by her pain to leave work.
 
             
 
             II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical 
 
            condition has resulted in an industrial disability is 
 
            determined from examination of several factors.  These 
 
            factors 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.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
            In the case sub judice, it was found that claimant has 
 
            suffered a 40 percent loss of her earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 200 weeks of 
 
            permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(u) which is 40 percent of 500 weeks, the 
 
            maximum allowable for an injury to the body as a whole in 
 
            that subsection.
 
            
 
            The parties stipulated as to the extent of healing period 
 
            benefits to which claimant is entitled should a work injury 
 
            be found.  Claimant will be awarded such benefits according 
 
            to this stipulation.
 
            
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            for treatment of a work injury.  In the case at bar, the 
 
            parties stipulated that the requested medical expenses were 
 
            causally connected to the back condition upon which was the 
 
            subject of this litigation.  The only dispute was the causal 
 
            connection of the condition to a work injury.  In light of 
 
            the finding of a work injury, the stipulation applies and 
 
            the expenses will be awarded.
 
             
 
             IV.  Finally, claimant seeks additional weekly benefits 
 
            under Iowa Code section 86.13.  The unnumbered last 
 
            paragraph of Iowa Code section 86.13 states as follows:
 
            If a delay in commencement or termination of benefits occurs 
 
            without reasonable or probable cause or excuse, the 
 
            industrial commissioner shall award benefits in addition to 
 
            those benefits payable under this chapter, or chapters 85, 
 
            85A, or 85B, up to fifty percent of the amount of benefits 
 
            that were unreasonably delayed or denied.
 
            *****
 
            Turning to the case sub judice, it is rather apparent that 
 
            the claim was not investigated.  Had there been a reasonable 
 
            investigation at the time the claim was denied in the fall 
 
            of 1988, the only evidence available would have supported 
 
            claimant's case.  It is also apparent that defendants did 
 
            not and could not have relied upon the views of Dr. Kelly in 
 
            this denial of the claim as the opinions were not obtained 
 
            in a normal routine investigation process but only in 
 
            anticipation of litigation shortly before the hearing in 
 
            this case.  At a minimum, to be "fairly debatable" an 
 
            insurer's denial of claim must have the support of medical 
 
            opinion if the claim itself has a supportive medical 
 
            opinion.  This was not done in this case.*****Therefore, an 
 
            additional 10 percent of permanent partial disability 
 
            benefits appears to be a proper penalty for the unfair 
 
            claims practices shown in this case.  These payments should 
 
            be made from the date defendants first became aware that the 
 
            injury was work related by Dr. Carlstrom, October 5, 1988.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                   ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-five and 20/l00 dollars ($235.20) per 
 
            week from October 6, 1988.
 
            
 
            That defendants shall pay to claimant healing period 
 
            benefits from May 20, 1988 through October 5, 1988 at the 
 
            rate of two hundred thirty-five and 20/l00 dollars ($235.20) 
 
            per week as stipulated by the parties.
 
            
 
            That defendants shall pay an additional fifty (50) weeks of 
 
            permanent partial disability benefits for an unreasonable 
 
            denial of this claim.  These payments shall be due from 
 
            October 5, 1988.
 
            
 
            That defendants shall pay the medical expenses and mileage 
 
            expenses at the rate of twenty-one cents ($.21) per mile 
 
            listed in the prehearing report.  Claimant shall be 
 
            reimbursed for any of these expenses paid by her.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Otherwise, defendants shall pay the provider directly along 
 
            with any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
            That defendants shall receive credit for previous payment of 
 
            benefits under a nonoccupational group insurance plan, if 
 
            applicable and appropriate, under Iowa Code section 85.38(2) 
 
            less any tax deductions from those payments.
 
            
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            That defendants shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to 
 
            Division of Industrial Services rule 343 IAC 3.l.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                                   BYRON K. ORTON
 
                                               INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Avenue  STE 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed April 7, 1994
 
                                              LARRY P. WALSHIRE
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT WEST,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 952365
 
            PURINA MILLS, INC., 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CIGNA PROPERTY & CASUALTY,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JOAN HOVEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 952465
 
            UNIVERSITY OF NORTHERN        :
 
            IOWA,                              A R B I T R A T I O N
 
                                          :
 
                 Employer,                       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Joan Hovey against her former 
 
            employer, the University of Northern Iowa, and the State of 
 
            Iowa.  Ms. Hovey sustained a work injury in a slip and fall 
 
            on May 18, 1990, and now seeks benefits under the Iowa 
 
            Workers' Compensation Act.
 
            
 
                 A hearing was accordingly held in Waterloo, Iowa on 
 
            December 1, 1993.  The record consists of joint exhibits 
 
            1-10, defendants' exhibit A and the testimony of claimant, 
 
            Beverly Bowen and Pamela Reed.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on May 18, 
 
                    1990;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  The extent of healing period is no 
 
                    longer in dispute;
 
            
 
                    4.  Permanent disability should be 
 
                    compensated industrially;
 
            
 
                    5.  The proper rate of weekly compensation 
 
                    is $229.65;
 
            
 
                    6.  Entitlement to medical benefits is no 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    longer in dispute;
 
            
 
                    7.  In addition to healing period benefits, 
 
                    defendants paid 20 weeks of permanency 
 
                    benefits at the stipulated rate; and,
 
            
 
                    8.  Defendants paid $21,970.00 in long term 
 
                    disability benefits for which they seek 
 
                    credit under Iowa Code section 85.38(2).
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  The extent of permanent disability; and,
 
            
 
                    2.  Whether defendants are entitled to 
 
                    credit under Iowa Code section 85.38(2).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Joan Hovey, nearly 43 years of age at hearing, is a 
 
            high school graduate.  She had no further formal education 
 
            prior to the subject work injury.  Her work history includes 
 
            experience as a nurse's aide, cashier, factory assembly line 
 
            worker, restaurant hostess and baby sitter.  Ms. Hovey 
 
            accepted work with the University of Northern Iowa as a 
 
            Motor Vehicle Operator II.  Her primary responsibility was 
 
            pick up and delivery of mail, which involved lugging heavy 
 
            mail sacks weighing up to 100 pounds.
 
            
 
                 Claimant was injured while trying to lug a heavy cart 
 
            from a loading dock onto a truck.  Her right leg slipped in 
 
            the space between the dock and the truck, causing an awkward 
 
            and twisted fall to her buttock.  Claimant's left leg was 
 
            twisted at an awkward angle such that she struck her chin on 
 
            the left knee while falling.
 
            
 
                 Claimant was first treated by her family physician, 
 
            Steven Tarr, M.D., then was referred to an orthopedic 
 
            specialist, Arnold Delbridge, M.D.  Dr. Delbridge has been 
 
            the primary treating physician.
 
            
 
                 Dr. Delbridge has diagnosed a severe thoracolumbar 
 
            strain/sprain superimposed on acquired spinal canal 
 
            narrowing at L3-4 and L4-5.  He has imposed restrictions 
 
            against lifting in excess of 15 pounds repetitively or 30 
 
            pounds maximum, against lifting below knee level, against 
 
            repeated stooping or bending and against riding in a vehicle 
 
            for more than one hour at a time.  He also anticipated that 
 
            claimant would have trouble sitting for a period of time 
 
            while seeking to further her education, an anticipation that 
 
            proved correct in the event.  Dr. Delbridge also opined that 
 
            claimant reached maximum recovery on June 8, 1991 (although 
 
            Dr. Delbridge raised maximum lifting capacity from 20 to 30 
 
            pounds during the next year) and has assigned a four percent 
 
            impairment rating to the body as a whole.  Obviously, as Dr. 
 
            Delbridge has pointed out, claimant cannot return to her 
 
            former job.  Indeed, she was discharged from that position 
 
            for this very reason.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Tarr also recommended physical restrictions in 
 
            January 1991 against lifting or carrying in excess of 25 
 
            pounds, bending or stooping, and requiring a change of 
 
            position every 15 minutes, alternating between walking, 
 
            standing and sitting.  Although these restrictions are 
 
            similar to those of Dr. Delbridge, the opinion of the 
 
            treating orthopedic specialist is preferred here.
 
            
 
                 Claimant also underwent a functional capacity 
 
            assessment by Dr. Charles Ross in January 1991.  Dr. Ross 
 
            suggested a lifting/carrying restriction of 20 pounds 
 
            occasionally, ten pounds frequently, and would allow six 
 
            hours standing, walking or sitting in an eight-hour work 
 
            day.
 
            
 
                 As noted, claimant was discharged from her previous 
 
            position by defendant.  On her own, she sought aid from the 
 
            Iowa Division of Rehabilitation Services, leading to some 
 
            classes at a technical institute as a medical secretary.  
 
            Claimant had problems sitting in class and carrying books 
 
            between classes, so this has not worked out well.  Her 
 
            counselor at DVR, Lee Ann Russo, has written:
 
            
 
                 Such limitations/restrictions result in a 
 
                 substantial vocational handicap in that:  client 
 
                 cannot ever return to any type of former 
 
                 employment positions that she's had.  She will 
 
                 need to carefully monitor her condition over the 
 
                 rest of her life as her prognosis is guarded.  She 
 
                 has to refrain from any jobs involving stooping, 
 
                 bending, lifting, etc. and needs a position that 
 
                 will allow her to stand and sit intermittently.  
 
                 Client will assuredly benefit from the advocacy 
 
                 services VR can offer in terms of both placement 
 
                 and training.  She will probably experience both 
 
                 employer and community prejudice as a result of 
 
                 her condition.
 
            
 
            (Claimant's Exhibit 4, Page 128)
 
            
 
                 Defendants have offered claimant no other position, 
 
            although she has some recall rights.  Shortly before 
 
            hearing, she was sent job descriptions for possible 
 
            positions as a Food Service Worker II and III, although it 
 
            is speculative as to whether she will actually be offered 
 
            either job.  Since the injury, claimant has worked as a 
 
            volunteer for an accounting business, in a photographic 
 
            laboratory, as a sample distributor at grocery stores, and, 
 
            accepted her current part time position in January 1993.  
 
            She is currently a hostess at a restaurant working 3-5 hours 
 
            on 5 days per week, earning an average of $4.65 per hour 
 
            ($2.79 plus a share of tips).  Claimant was earning $8.59 
 
            per hour on a full time basis on the date of injury.
 
            
 
                 Defendant paid the cost of the long term disability 
 
            policy under which claimant received a stipulated $21,970.00 
 
            from September 27, 1990 through August 26, 1992.
 
            
 
                         
 

 
            
 
            Page   4
 
            
 
            
 
                        ANALYSIS AND CONCLUSIONS OF LAW
 
                 
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 As claimant's DVR counselor has pointed out, there is 
 
            little in her past work history that she can now perform as 
 
            a result of this injury.  The exception is restaurant 
 
            hostess, a position in which she is currently employed, 
 
            although only on a part time basis.  Her hourly wage is only 
 
            slightly more than half hourly earnings with defendant, and 
 
            undoubtedly with fewer benefits.  Retraining will be 
 
            difficult because of claimant's problems with extended 
 
            sitting.  Claimant is of an age which ordinarily would be in 
 
            her peak earning years.  The severe restrictions, especially 
 
            against extended sitting, will foreclose claimant from much 
 
            of the work which might previously have been suitable to her 
 
            education and work history.
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 50 
 
            percent of the body as a whole, or 250 weeks.  Such benefits 
 
            accrued from the end of the healing period, specified by Dr. 
 
            Delbridge as June 8, 1991.
 
            
 
                 Iowa Code section 85.38(2), provides credits to an 
 
            employer where, as here, benefits are paid under a group 
 
            plan contributed to wholly or partially by the employer.  
 
            The credit is the net amount claimant receives after all 
 
            applicable taxes.  Beller v. Iowa State Penitentiary, File 
 
            No. 799401 (Appeal Decision, 1991).  Defendants are entitled 
 
            to credit.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay two hundred fifty (250) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred twenty-nine and 65/100 dollars ($229.65) commencing 
 
            June 9, 1991.
 
            
 
                 Defendants shall have credit for twenty (20) weeks of 
 
            benefits previously paid, and the net (after taxes) long 
 
            term disability paid under Iowa Code section 85.38(2).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall file a claim activity report following 
 
            compliance with this order.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                                         ------------------------------
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Edward J Gallagher Jr
 
            Attorney at Law
 
            405 East Fifth Street
 
            PO Box 2615
 
            Waterloo Iowa 50704-2615
 
            
 
            Mr Stephen Moline
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed March 28, 1994
 
                                              DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JOAN HOVEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 952465
 
            UNIVERSITY OF NORTHERN        :
 
            IOWA,                              A R B I T R A T I O N
 
                                          :
 
                 Employer,                       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Industrial disability was determined.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                   2204 2501 2701
 
                                   Filed January 10, 1995
 
                                   Michael G. Trier
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
CAROL DEGRADO,     
 
                                     File No. 952496
 
     Claimant, 
 
                                   A L T E R N A T E
 
vs.       
 
                                     M E D I C A L 
 
COOPER MANUFACTURING,   
 
                                       C A R E  
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
AETNA CASUALTY CO.,     
 
          
 
     Insurance Carrier, 
 
     Defendants.    
 
________________________________________________________________
 
 
 
2204 2501 2701 
 
Claimant diagnosed with major depressive disorder granted alternate 
 
care in the form of treatment by a psychiatrist.  Defendants were 
 
ordered to arrange a charge account at a pharmacy in the area of 
 
claimant's residence to pay the costs of the medications prescribed by 
 
the psychiatrist.